Rehnquist Favors Scrutiny of Nominees’ Philosophy

Chief Justice William H. Rehnquist, in a rare public comment on a heated controversy that has split the White House and Senate Democrats, said Thursday that it is “entirely consistent with our Constitution” for both branches of government to consider the judicial philosophy of a Supreme Court nominee.

In a speech at Columbia University in New York, Rehnquist noted that there “has been considerable criticism over the perceived excesses of the confirmation process,” apparently alluding to White House charges that Senate liberals had unfairly attacked Judge Robert H. Bork’s views during his unsuccessful confirmation fight.

“Without in any way deprecating that criticism, I think that, in the United States at any rate, we recognize that there is apt to be some inquiry by the Senate as well as by the President in what may be called the ‘judicial philosophy’ of a nominee to our court,” he said. “This has always seemed to me entirely consistent with our Constitution and serves as a way of reconciling judicial independence with majority rule.”

However, Rehnquist stopped well short of taking the Senate’s side in the dispute over whether Bork was grilled too harshly or his confirmation review was unduly political.

Cites Past Abuses

Rehnquist said that both presidents and the Senate have gone too far on a few occasions in American history in trying to force their political will on the Supreme Court. He did not say whether Bork’s case was one of them. He cited as examples of abuses the attempt in 1804 by a Senate dominated by Thomas Jefferson’s party to impeach Federalist Supreme Court Justice Samuel Chase and President Franklin D. Roosevelt’s proposal in 1937 to “pack” the court by expanding the panel and filling the new seats with his appointees.

In both situations, the efforts failed, Rehnquist noted. Where the authority of the Supreme Court itself is under attack, members of both political parties must be willing “to rise above purely partisan considerations to vindicate the independence not only of federal judges but of the federal courts,” he said.

Rehnquist’s assertion that judicial and political philosophy are a valid part of the high court nomination process is not a new view for him. On several occasions during President Reagan’s term, he has said that a conservative President is justified in looking for conservatives to place on the high court.

“Any court which has the authority to declare legislative acts unconstitutional is bound to be regarded as part of the political process in the broadest sense of that term. And for that reason, it is bound to attract the attention of the political branches of government,” said Rehnquist, in the text of his speech, which was released here by the Supreme Court.