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Justice Rehnquist and the Constitution
By Sue Davis PRINCETON UNIVERSITY PRESS
Copyright © 1989 Princeton University Press
All rights reserved.
ISBN: 978-0-691-07800-7
CHAPTER 1
1971: Richard Nixon Appoints a New Justice
[I]t may be charged that they are conservatives. This is true. But only in a judicial, not a political sense. — President Richard M. Nixon, announcing the nomination of William H Rehnquist and Lewis F. Powell to the Supreme Court (NEW YORK TIMES, October 22, 1971)
My notion would be that [a judicial conservative] attempts to ascertain a constitutional meaning ... by the use of the language used by the framers, the historical materials available, and the precedents which other Justices of the Supreme Court have decided in cases involving a particular provision. — William H Rehnquist, testifying before the Senate Judiciary Committee (U.S. Congress 1971a)
Richard Nixon made the Supreme Court a major issue in his campaign for the presidency in 1968. In an attempt to appeal to voters by emphasizing law and order, he blamed decisions of the Warren Court for high rates of crime and little punishment. Judicial decisions, he said, "have had the effect of seriously hamstringing the peace forces in our society and strengthening the criminal forces" (quoted in Simon 1973, 8). Nixon adopted the term "strict constructionist" to describe the type of jurists he would place on the Court if he had the opportunity — justices who would "interpret the Constitution strictly and fairly and objectively," unlike some "who have gone too far in assuming unto themselves a mandate which is not there, and that is, to put their social and economic ideas into their decisions" (ibid.).
In October of 1971 President Nixon announced his nomination of William Rehnquist to the Supreme Court, presenting the future justice as a judicial conservative whose judicial philosophy would reflect the view that: "[i]t is the duty of a judge to interpret the Constitution, and not to place himself above the Constitution or outside the Constitution. He should not twist or bend the Constitution in order to perpetuate his personal, political, and social views" (New York Times, October 22, 1971). Implying that there is some correlation between judicial conservatism and a tough stand against crime, Nixon stated that as a judicial conservative himself, he believed that "some Court decisions have gone too far in the past in weakening the peace forces as against the criminal forces in our society" (ibid.). The president declared that Rehnquist was a conservative only the judicial, not the political, sense, apparently in order to assure the public that the nominee's political preferences would not influence his judicial decisions.
William Rehnquist had the qualifications that Nixon prescribed for a justice since he could be expected to act as a "judicial conservative" — a "strict constructionist" who would give "the peace forces ... the legal tools they need to protect the innocent from criminal elements" (ibid.). More specifically, in criminal cases Nixon expected Rehnquist to "strictly" construe the Bill of Rights and the due process clause of the Fourteenth Amendment to reverse the Warren Court's expansion of protections for the criminally accused. As a "strict constructionist" he could also be expected to favor "judicial restraint," and thereby to help steer the Court toward a more modest role in the American political system.
The president's confidence in his nominee was based, in part, upon Rehnquist's record in the Justice Department, where he served as assistant attorney general for the Office of Legal Counsel from 1969 until 1971. In that position, he supported inherent executive authority to order wiretapping and surveillance without a prior court order, no-knock entry by the police, preventive detention, the abolition of habeas corpus proceedings after trial, and the abolition of the exclusionary rule (U.S. Congress 1971a, 139–40, 185, 313–15). He also supported the suspension of normal procedures for arrest in order to facilitate the detention of 12,000 antiwar protesters in Washington, D.C., during the May Day demonstrations in 1971 (ibid., 43–48).
Rehnquist's tough position regarding crime was only one of several qualities that made him attractive to the Nixon administration. He also possessed impressive academic credentials, intelligence, and integrity. Only two years had passed since the Senate had rejected the nomination of, first, Clement F. Haynsworth and then G. Harrold Carswell to fill the vacancy left by Justice Abe Fortas's resignation in 1969. When Justices Hugo Black and John Marshall Harlan II retired in 1971, Nixon sent a list of six possible nominees — all of whom possessed marginal qualifications — to the American Bar Association Standing Committee on Federal Judiciary. The president subsequently avoided another embarrasssing failure for the administration by dropping "The Six" and selecting instead Rehnquist and Powell, whose qualifications were strikingly impressive by comparison.
Rehnquist's Background and Record
Rehnquist was born in 1924, grew up in a suburb of Milwaukee, attended Kenyon College in Ohio for a year, and served for three years in the Army Air Corps during World War II as a weather observer, stationed in North Africa. He used the G.I. Bill to attend Stanford University, from which he received his undergraduate degree (1948) and M.A. (1949) in political science. He received a second M.A. in government from Harvard University (1950). In December of 1951, when he graduated first in his class from Stanford Law School, Justice Robert Jackson selected him as his law clerk. He served in that position from February 1952 until June 1953; during that time he met his future wife, who was then working for the Central Intelligence Agency.
Rehnquist firmly established his reputation as an active and outspoken conservative early in his legal career. During the late 1950s, for example, he publicly criticized the Warren Court, making statements that left him open to charges of extremism and even of McCarthyism. In 1957 he argued that the Court was devoted to a political philosophy that included "extreme solicitude for the claims of Communists and other criminal defendants, expansion of the Federal power at the expense of state power, [and] great sympathy for any Government regulation of business." In an article that appeared in the American Bar Association Journal in 1958 he stated that "Communists, former Communists, and others of like political philosophy scored significant victories during the October 1956 term of the Supreme Court of the United States, culminating in the historic decisions of June 17, 1957" (Rehnquist 1958, 229).
During his sixteen years as an attorney in Phoenix, Rehnquist participated in various political activities and became involved in local controversies, always taking the conservative position. He was actively involved in Barry Goldwater's presidential campaign of 1964. He appeared as a witness before the Phoenix City Council in opposition to a public accommodations ordinance — an action that he later justified by stating: "I am opposed to all civil rights laws," because they infringe on the rights of businesses. He publicly opposed efforts to end de facto segregation in Phoenix high schools and asserted that "many ... would feel that we are no more dedicated to an 'integrated' society than we are to a 'segregated' society." As a lawyer for the Republican party from 1958 through 1966 he was involved in a program to challenge voters at the polls. Rehnquist later explained the program as an effort to stop tombstone, or absentee, voting; however, there were allegations that the challengers intentionally harassed, intimidated, and interfered with blacks' and Hispanics' ability to vote (U.S. Congress 1971a, 71–72, 296, 490–92).
It was at the urging of another lawyer from Phoenix, Deputy Attorney General Richard Kleindienst, that John Mitchell appointed Rehnquist to the position of assistant attorney general for the Office of Legal Counsel. As the president's lawyer's lawyer, his principal duty was to draft position papers on the legality of the administration's actions. The positions he took in favor of, for example, inherent executive authority to order wiretapping, preventive detention, and abolition of the exclusionary rule exemplified Rehnquist's agreement with the Nixon administration's attitude toward crime. He also shared the administration's abhorrence of student unrest in the late 1960s, once characterizing the dissenters on the campuses as "the new barbarians" ("Reagan's Mr. Right," 1986, 25). Additionally, his views on school desegregation fit comfortably with those of the administration. In 1970 he drafted a proposed constitutional amendment prohibiting busing to achieve desegregation and a memorandum in support of the amendment (Weaver 1974, 99). Of course, Rehnquist's support for the policies of the administration was not extraordinary — after all, it was his job. If he had not shared the views of the administration, he would not have been selected for a position in the Justice Department. Still, he endorsed the policies with enthusiasm and energy. During his two years as assistant attorney general he explained the administration's policies to Congress eighteen times, on topics including obscenity, campaign reform, wiretapping, war powers, executive privilege, and the Equal Rights Amendment (ibid., 98). Once he disagreed with the administration's position, and although he did not make his views explicit, his presentation was, perhaps purposely, quite unpersuasive. The Nixon administration supported the Equal Rights Amendment but when Rehnquist testified before the House Judiciary Committee in April of 1971, he admitted that he did not believe that the amendment was necessary. When asked why he supported it, he responded, "Because the President has committed himself to it and the importance of a general statement in the Constitution establishing the principles of equality of women outweighs the disadvantages that might flow from enactment of the amendment" (quoted in U.S. Congress 1971a, 429).
The Confirmation
It was clear that Rehnquist had the credentials and the "brilliant and analytical mind" (U.S. Congress 1971a, 10) to qualify him for the Supreme Court. Nevertheless, there were serious questions regarding his fitness to serve as a justice. A chronicle of his activities as an attorney in Phoenix and as assistant attorney general described the career of an extremely conservative political activist. The controversy surrounding his confirmation reflected uncertainty that Nixon's "judicial conservative" would be an impartial, fair decision maker rather than a jurist who would use his position on the Court to further his own, as well as the Nixon administration's, political agenda.
The American Bar Association Standing Committee on Federal Judiciary's report to the Senate Judiciary Committee on his nomination was unanimous in the view that the nominee was qualified for the appointment, but three of the nine members gave him a rating of "not opposed." The reservations expressed by judges, lawyers, and law school deans who were interviewed for the report centered on his personal views. One judge expressed concern that Rehnquist had "such deep convictions on social and economic problems that he might be unduly and injudiciously influenced by those views in deciding cases" (ibid., 3).
The questions that several members of the Senate Judiciary Committee addressed to Rehnquist during the hearings on his nomination also manifested a concern for objectivity and fairness. Sen. John McClellen (D., Ark.), who questioned the nominee first, queried, "Would you feel free, as a justice, to take the text of the Constitution particularly in its broad phrases — 'due process' ... 'unreasonable search and seizure' — and to read into it your personal philosophy, be it liberal or conservative?" (ibid., 18–19). Rehnquist answered simply that he would not. When McClellen inquired whether Rehnquist as a jurist might alter the positions he held as a lawyer for the Justice Department, he answered in the affirmative. Sen. Philip Hart (D., Mich.) tried to probe more deeply by asking how one could resolve the meaning of constitutional provisions such as the due process clause without reference to personal philosophy. Rehnquist's response was that he would certainly take to the Court "what I am at the present time. There is no escaping it. I have lived for 47 years, and that goes with me." He went on to avow that "I will try to divorce my personal views as to what I thought [the Constitution] ought to mean from what I conceived the framers to have intended" (ibid., 24).
As Hart questioned the nominee about the impact of his personal views on his judicial decision making, he uncovered a major inconsistency in Nixon's proclaimed intention to appoint a "judicial conservative" to the Court. Nixon's judicial conservative, as Hart pointed out, "would not be too much of an activist, who interpreted the Constitution strictly and did not try to include [sic] his decisions towards a particular political or social view he thought desirable" (ibid., 26). At the same time, however, he would help to swing the pendulum away from the protection of the rights of the accused and toward the power of government. Hart pondered, How could a justice be expected "to follow strictly the mandates of the Constitution, without regard to a personal philosophy of law and order, or desired results in a particular area of the law" (ibid., 26–27) — particularly in light of the fact that he had been put on the Court for the express purpose of shifting the balance toward government? How could Rehnquist resolve such an apparent inconsistency? The nominee responded that the president might not see any inconsistency if he believed that "the pendulum had been swung too far toward the accused not by virtue of a fair reading of the Constitution but by virtue of what was conceived to be some outside influences such as the personal philosophy of one or more of the justices" (ibid., 27). As for his own personal philosophy, Rehnquist maintained that he would disassociate it as much as possible from his role as a justice.
Members of the Judiciary Committee also attempted to elicit information about Rehnquist's judicial views on the role of the courts, the role of precedent, and the interpretation of the Constitution. In response to questions, the nominee stated that he was opposed to lawmaking by the judiciary and affirmed repeatedly his belief that a justice should rely on the intent of the framers rather than his personal views in interpreting the Constitution. For example, when Sen. John Tunney (D., Calif.) inquired how Rehnquist would apply the due process clause in a case that raised the question of whether television should be allowed in the courtroom — a case with no relevant precedent — he responded that he would
read the amendment, and you suggest that there are no precedents, yet certainly there would be cases that would be not too far off and I would be inclined to go back to the debates, the Bingham explanation of what he meant by the 14th amendment, other explanations on the floor, and I am sure you would come up with something that obviously would not have included a particular discussion of whether a trial could be televised or not. ... [but] I think it would be wrong for me to simply read in my own subjective notions of fairness. (Ibid., 190)
When he was asked about his view of the role of precedent, he reiterated the tradition that precedent carries greater weight in statutory construction than in constitutional interpretation (ibid., 138–39). In an exchange with Sen. Edward Kennedy (D., Mass.), he stated "to the extent that a precedent is not that authoritative in the sense of having stood for a shorter period of time, or having been handed down by a sharply divided court, then it is of less weight as a precedent" (ibid., 55).
Discussions about the role of precedent led to questions concerning the nominee's views of Brown v. Board of Education (347 U.S. 483 [1954]). At one point, responding to questions asked by Sen. Birch Bayh (D., Ind.), Rehnquist noted that, although he strongly believed that the Court should not reinterpret the Constitution to bring it up to date, he supported the Court's decision in 1954 that segregated schools violated the equal protection clause of the Fourteenth Amendment (U.S. Congress 1971a, 167). Asked how he would justify the Court's departure from the doctrine of "separate but equal," which the Court established in 1896 in its decision in Plessy v. Ferguson (163 U.S. 537), he answered that all the justices in Brown examined the specific issues and the historical intent of the framers of the Fourteenth Amendment, and concluded that the Court had been incorrect in Plessy. He defended the Court's 1954 decision: "[I]f nine Justices, presumably of the same varying temperaments that one customarily gets on the Supreme Court at the same time, all address themselves to the issue and all unanimously decide that the Constitution requires a particular result, that, to me, is very strong evidence that the Constitution does, in fact, require that result" (ibid., 167). He suggested further that reinterpretation of the intent of the framers might justify departure from precedent: "If you became convinced that the Plessy Court had not properly interpreted that intent, that it had simply adopted a view that was too narrow to be consistent with what the framers of the Fourteenth Amendment intended, then I think you would be entitled to disregard Plessy" (ibid., 168).
(Continues...)
Excerpted from Justice Rehnquist and the Constitution by Sue Davis. Copyright © 1989 Princeton University Press. Excerpted by permission of PRINCETON UNIVERSITY PRESS.
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