The Long--If Intermittent--Battle Over the Courts

Ironically, the conservative chief justice of the United States is publicly squaring off with the leadership in the GOP-controlled Senate. Much has been made of it; but it’s neither unprecedented nor even uncharacteristic of relations between the court and Congress. Moreover, although the controversy is important, the quarreling is not particularly sensational in light of history.

To be sure, chief justices infrequently provoke controversy, and members of Congress generally pay little or no attention to the judiciary. That is, except when politicians decide court-bashing will offer political dividends with their constituents. Otherwise, senators and representatives usually tend to have little interest in the courts or their operation.

It is ironic, therefore, that Chief Justice William H. Rehnquist, appointed to the court by Republican President Richard M. Nixon in 1972, publicly took to task his philosophical soul mate and long-time supporter, Sen. Orrin G. Hatch (R-Utah). Back in 1986, when GOP President Ronald Reagan elevated Rehnquist from associate to chief justice, Sen. Edward M. Kennedy (D-Mass.) spearheaded a drive to derail his Senate confirmation. Kennedy, who opposed Rehnquist when first named to the bench, denounced him as “too extreme to be chief justice.” Hatch, at that time, rallied a spirited defense for Rehnquist, even blasting the hearings for becoming a “Rehnquisition.”

Major disputes between the court and the Congress are far from unprecedented, and when they erupt, they tend to become extremely nasty. Indeed, ever since the early 1800s, when the Jeffersonian Republicans attacked the federal courts, then packed with Federalist judges, fights have periodically broken out. They always revolve around bitter partisan disagreements. In 1805, for instance, the Jeffersonian Republicans sought, unsuccessfully, to impeach Justice Samuel Chase for espousing his Federalist philosophy from the bench.

Conflicts tend to be highly personal and intensely ideological primarily during confirmation hearings before the Senate. Recall that in 1968, Senate opposition to Democratic President Lyndon B. Johnson’s proposed elevation of Justice Abe Fortas to the chief justiceship resulted in his withdrawing from the nomination. Sen. James O. Eastland (D-Miss.), the powerful chairman of the judiciary committee, reviled Fortas. For more than a decade, Eastland had marshaled a campaign against the Warren court for its 1954 landmark school-desegregation ruling in Brown vs. Board of Education. Identifying Fortas with the liberal judicial activism of the Warren court, Eastland accused him of tearing down “those ideas, ideals and institutions that have made this country great.”

So, too, unseemly quarreling turns white hot when the prospect arises for the ultimate sanction, impeachment. Just a quarter century ago, House Minority leader Rep. Gerald R. Ford (R-Mich.), led a drive to impeach Justice William O. Douglas. A passionate liberal, Douglas was only the second justice in U.S. history to face a serious threat of impeachment. When personally denouncing him, Ford claimed his judicial philosophy and extrajudicial activities “impaired his usefulness and clouded his contribution” to the court. However, the Senate Judiciary Committee, then controlled by Democrats, found no grounds for impeachment. Ford called it a “travesty,” but he should have known impeachment is rare--a “mere scarecrow,” as President Thomas Jefferson observed after the Senate’s failure to convict Chase.

High rhetoric, low blows and charges of judicial activism are par for the course when war is waged against the federal judiciary. Since Republicans have capitalized on charging federal judges with judicial activism during the past 30 years, it is easy to forget that Democrats originally invented that charge in the 1930s, while assailing a conservative Supreme Court.

In what became a major constitutional crisis and the biggest battle over the federal bench this century, in 1937 Democratic President Franklin D. Roosevelt chastised the court for its activism in becoming a “super-legislature.” A bare majority of the Supreme Court had struck down much of the early New Deal program. Angry, Roosevelt began insisting, dishonestly, that the justices were too old and overworked. He portrayed his plan to increase the justices’ number from nine to 15 as a solution to ostensible workload problems, but he was, in fact, trying to secure a favorable majority.

Chief Justice Charles Evans Hughes publicly defended the court and its work. In Congress, it was Sen. Hugo L. Black (D-Ala.) who did Roosevelt’s bidding by vigorously denouncing the court during the fight over the plan. It failed, after the court handed down its famous “switch-in-time-that-saved-nine” decisions, upholding New Deal programs in the spring of 1937, and the Senate rose above heated partisan rhetoric to defeat Roosevelt’s court-packing scheme.

Compared with such heated former battles, the current one appears a tempest in a teapot. Thus far, the rhetoric is neither personal nor fever pitched. In his Annual State of the Judiciary Address, the chief justice warned that the failure to fill judicial vacancies jeopardizes the administration of justice. One of every 10 judgeships remains vacant. Though he did not say so, since President Bill Clinton’s reelection, the GOP right wing has sought to delay and deny confirmation of his judicial nominees. Rehnquist merely sounded an alarm: “The Senate confirmed only 17 judges in 1996 and 36 in 1997, well under the 101 judges it confirmed during 1994.” He underscored: “Vacancies cannot remain at such high levels without eroding the quality of justice.”

Hatch, who chairs the Judiciary Committee, immediately led the GOP counter-offensive. Dismissing Rehnquist’s concerns, he disputed the assertion that a diminished federal bench cannot keep abreast of rising caseloads. He also tried to switch the blame by faulting the president for failing to make more nominations and for naming too many liberal judicial activists. Finally, drawing out old bait, Hatch suggested that the federal judiciary’s excessive activism contributed to the Senate’s reluctance to confirm judicial nominees.

Still, as the titular head of the federal judiciary, Rehnquist has a responsibility to speak out about the problems facing the federal courts. Not to do so would be irresponsible, given his position. Certainly, his predecessors--notably, Chief Justices William Howard Taft, Hughes and Warren E. Burger--never shied away from such skirmishes. Each championed judicial reforms that, on occasion, stirred controversy. Like them, Rehnquist did not lay down a call to arms, but instead issued an alert to the country about a growing problem.

The fact remains that if Senate Republicans continue their delaying tactics, they most certainly will hold up virtually all judicial appointments next year, when the presidential election cycle goes into full gear. That is past practice when it comes to the Senate Judiciary Committee’s dealings with lame-duck presidents. Republicans will thus succeed in denying Clinton a large number of federal judgeships. But, in the process, they will exact a high price from the federal judiciary, as well as seriously hinder the administration of justice in the country.

In speaking out, Rehnquist rose above partisan politics and, ironically, entered into a political fray against old allies and supporters. He spotlighted a serious and increasing problem that needs addressing--without the partisan bickering and duplicitous political rhetoric that typically only serves to exacerbate inter-branch disputes.