Tale of Two Justices

Two court justices are under intense public scrutiny--U.S. Supreme Court Justice William H. Rehnquist, as President Reagan’s nominee for chief justice of the United States, and California Chief Justice Rose Elizabeth Bird, who is on the ballot in November.

We would not now choose either person for either job. But we believe that unless facts not now known should come to light, Rehnquist should be confirmed, and Bird, retained.

There are clearly differences between state and federal courts. But on important points the similarities are both striking and central to any examination of the fitness of these justices to serve.

At issue in both cases is the special role of the judiciary in the American democracy, and the relationship of politics to the bench. In the American democracy the judiciary is the final arbiter between the legislature and the executive, between the minority and the majority, between the old precedents of existing law and the new facts of the present day.

The role of the bench is, in the broadest sense of the word, political , in that the courts set many of the rules by which the nation lives and conducts its business. Because the function of the courts is in this sense political, it should neither surprise nor dismay anyone that political controversy often attends the appointment and retention of judges.

In the case of Rehnquist the question is what kind of standard the Senate should apply in deciding whether to confirm his elevation to the principal judicial post in the United States. In the case of Bird the question is what standard the people of California should apply in saying Yes or No to her retention as chief justice of the state.

Those who argue against Rehnquist are constitutionally correct when they say that the Senate has an equal voice with the President in deciding the appointment: The President proposes, the Senate disposes. Those who argue against Bird are constitutionally correct when they point out that the state Constitution permits the voters to remove a sitting judge at the stated intervals.

But the nation and the state should be very careful about using these procedures, constitutionally defensible though they are.

It has been the custom in the United States since the beginning for the Senate generally to grant the President the judges he asks for. When the President is thwarted it is usually, and always should be, for weighty cause. A judge unqualified by reason of lack of experience, judicial temperament, inappropriate behavior or extremist views should be rejected; a judge qualified by experience, temperament and character should not be rejected if his or her views do not lie outside the general course of American law.

Rehnquist’s views on civil rights, on free speech, on church and state, on the role of women, in our opinion run counter to the more generous and progressive nature of this Republic. His unbending, flinty dissents compel us to question whether he can foster on the court the climate of collegiality it needs to function most effectively and persuasively. Yet it seems to us that it cannot be said that Rehnquist, though he occupies the outside edge of American jurisprudence, has placed himself beyond its bounds. And as chief justice his genial manner may temper his stiffness of mind. From his judicial record, and what is known of his character, Rehnquist does not deserve to be denied the post to which he has been nominated.

Unlike federal judges, California judges do not serve for life, but must, at the appellate level, stand for reconfirmation at set but lengthy intervals. They should be removed only for the most compelling reasons.

Service for judges “during good behavior” was developed, as Alexander Hamilton explained, because “in a monarchy it is an excellent barrier to the despotism of the prince; in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body. And it is the best expedient which can be devised in any government to secure a steady, upright and impartial administration of the laws.”

Hamilton’s words, in the Federalist, are an excellent general statement of the great importance of the independence of the judiciary. The voter who holds to this principle will say, following Hamilton, to Rehnquist or to Bird, “I may not agree with you, in fact I know I don’t, but following the general principles of judicial independence will secure our common liberties more surely than rejecting you because I disagree with you.”

We supported Bird’s nomination as chief justice in 1977. We think now an appointment as associate justice would have been more appropriate. Because she approached the post rather rigid in personality and zealous in her views, she was unable to lead the court effectively. Recently both she and it seem to be working somewhat more smoothly.

But it is her views that have drawn public fire. Opposition to her has focused on her consistent votes to overturn death-penalty cases. A pattern of consistency is indeed disturbing, and cause for a close look. But we think the evidence is insufficient to demonstrate conclusively that she has, as claimed, placed her personal views above the law. Others may see it differently and act accordingly.

So it is with Rehnquist’s active partisanship in Arizona politics and the racially restrictive covenant on the deed of his summer home. The matter of the deed is especially disquieting, but the fact that such covenants had long since lost any legal meaning by the time he signed his says--to us, at least--that the evidence is not conclusive. That, too, may be seen differently by others.

What we are advocating here is an approach to the judiciary that is conservative in the fullest sense of the word, an approach that does not upset custom and tradition, a point of view that honors the special place of the bench in American society and seeks to leave it undisturbed.

As Rehnquist stands at one end of the judicial spectrum, an articulate skeptic of judicial intervention, Bird stands at the other, an ardent apostle of reform. Yet, like Rehnquist, she stands within, not outside, America’s judicial tradition. Like Rehnquist, she does not deserve to be deprived of office.