Judgment Askew

Among the ironies surrounding the Senate’s impeachment trial of President Bill Clinton is that this political trial of the century is presided over by one of the most partisan of Supreme Court chief justices, William H. Rehnquist. Because justices are supposed to be removed from politics, the fact that Rehnquist has hovered on the sidelines of this controversy all along is often overlooked.

Yet, Rehnquist had a hand in numerous decisions now culminating in the Senate’s trial. In 1988, he wrote the Supreme Court’s opinion upholding the constitutionality of the appointment of independent counsels. Subsequently, he named the three-judge panel that appointed independent counsel Kenneth W. Starr and expanded his investigation from Whitewater to former White House intern Monica S. Lewinsky. He handed down the court’s decision on Clinton vs. Jones in 1997, rendering the president vulnerable while in office to civil lawsuits for alleged offenses committed before entering the White House.

It is easy to forget, as well, the twists and turns of Rehnquist’s embattled career that now place him in the vortex of the political controversy engulfing the White House. Republican President Richard M. Nixon, the only president to resign in the face of impeachment, initially named him to the court. Subsequently, he was elevated to the chief justiceship by Republican President Ronald Reagan. Both of his confirmation hearings turned into bitter Senate battles, not unlike that now over impeachment. Along with being a longtime GOP loyalist and amateur historian, Rehnquist wrote a book, “Grand Inquests,” about the 1868 impeachment and trial of President Andrew Johnson, the only other president to be impeached by the House of Representatives and confront a Senate trial.

Rehnquist’s own ambitious partisanship began with his childhood in a Republican household in Shorewood, Wis. After serving in the army during World War II, his keen interest in law, politics and history led him to earn two M.A.s in political science, from Harvard University and Stanford University, before graduating first in his class from Stanford Law School in 1952.

Rehnquist then served for 18 months as a law clerk to Justice Robert H. Jackson. At that time, the Supreme Court was considering what would become its landmark 1954 school-desegregation ruling, Brown vs. Board of Education. In a memo to Jackson, Rehnquist tried to persuade his justice to uphold the doctrine of “separate but equal.” He also lamented that “liberal” law clerks “excoriated” him for his “unpopular and unhumanitarian position,” but he refused to yield. Jackson was unpersuaded and supported the court’s unanimous decision in Brown, yet the memo remains, revealing and emblematic of Rehnquist’s uncompromising partisanship. Moreover, after moving into private practice in Phoenix, Ariz., in the ugly aftermath of widespread opposition to Brown, he sharply criticized the court, complaining, in a 1957 U.S. News & World Report article, that law clerks exercise too much influence over the justices.

With Nixon’s 1968 election, Rehnquist had the opportunity to return to the heady mix of law and politics in the nation’s capital. He immediately joined Nixon’s administration, as an assistant attorney general overseeing the appointment of federal judges. Within three years, Nixon had nominated him to the Supreme Court.

At his Senate confirmation hearings in 1971, Rehnquist’s strident conservatism ensnared him in controversy. His memo on Brown resurfaced. Yet, he denied it reflected his views, insisting instead that it registered Jackson’s position. The historical evidence, however, points incontrovertibly to the contrary. Even Jackson’s secretary denounced Rehnquist for defaming a great justice. Nonetheless, the Senate confirmed him by 68 to 26.

On Jan. 7, 1972, at age 47, Rehnquist was sworn in as associate justice. On the bench, he quickly staked out far-right positions on states rights and civil liberties. Indeed, he wrote so many solo dissenting opinions that he was nicknamed the “Lone Ranger.”

He was outspoken off the bench as well. Next to Chief Justice Warren E. Burger, he gave more speeches than any other justice. He vigorously defended his judicial conservatism and the power of presidents to pack the court with their ideological kin. His former law clerks went on to work in the Reagan administration, and he became a kind of idol for those waging the “Reagan revolution.”

When Burger announced he would retire in 1986, Rehnquist’s elevation by Reagan was politically symbolic and strategic. His jurisprudence was closely identified with that of the administration. Strategically, Reagan’s White House bet that the Senate would not deny confirmation, since Rehnquist was already sitting on the high bench.

The Senate Judiciary Committee’s hearings on Rehnquist’s nomination as chief justice were as hotly partisan as those 15 years earlier. Once again, he disavowed his Brown memo. The lingering cloud of implausible denials, though, further darkened amid new allegations that, in the 1960s, Rehnquist participated in Republican efforts to intimidate black voters at polling places in Phoenix. Still, the Senate confirmed him, though by a narrower margin--65 to 33--than the first time around.

As chief justice, Rehnquist wins praise from his colleagues. This is largely because he is more intellectually well-equipped and self-confident than his predecessor. He is charming and witty, but also, at times, cagey, shrewd and blunt. He has written three history books, paints and is an ardent fan of Gilbert and Sullivan operettas--such a fan that he has appeared in productions and also had four gold stripes added to each arm of his black robes, like the English lord chancellor in “Iolanthe.” Rehnquist plays in a regular poker game with a small circle of conservative friends, including one of Clinton’s most vicious attackers, former Secretary of Education William J. Bennett.

In the 1990s, Rehnquist has achieved as chief justice much of what he campaigned for as a rogue dissenting justice in the 1970s and early 1980s. Although Roe vs. Wade has not been overturned, he commands a bare majority for halting integration efforts, overturning affirmative-action programs, curbing the rights of the accused, expediting the executions of death-row inmates and limiting congressional powers to expand federal law.

To be sure, in presiding over the Senate trial, Rehnquist plays a largely ceremonial role, and, with his own place in history in mind, he understands that. Writing for a unanimous court in Nixon vs. United States in 1993, in which impeached U.S. District Court Judge Walter L. Nixon Jr. challenged the Senate’s authority to hear evidence against him, Rehnquist reaffirmed that the Senate has the “sole power to try all impeachments” and, therefore, may play fast and loose with rules of evidence. A majority of the Senate, for instance, may override him and dispense with the trial at any point.

Still, for the 74-year-old chief justice, presiding over Clinton’s impeachment trial caps a half-century legal career and a lifetime of political partisanship. The ironies of history abound: a presiding chief justice originally appointed by a president who resigned in the face of impeachment; a chief justice marked by his own Senate battles, who doggedly pursues his agenda on the bench; and a fierce partisan overseeing the political trial of the century. Most remarkable, though, remains the spectacle of Rehnquist, who twice faced allegations of lying before the Senate, presiding over the trial of a popular president confronting allegations of lying about private matters of self-indulgence and personal disgrace.