The Rehnquist Court and the Constitution
The Rehnquist Court and the Constitution
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| ISBN-13: | 9780195356021 |
|---|---|
| Publisher: | Oxford University Press |
| Publication date: | 03/30/2000 |
| Sold by: | Barnes & Noble |
| Format: | eBook |
| File size: | 481 KB |
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Chapter One
The Justices
In a White House ceremony on the morning of September 26, 1986, Chief Justice Burger administered his successor the oath of office required by the Constitution. That afternoon at the Supreme Court, Chief Justice Rehnquist took the judicial oath, promising to "administer justice without respect to persons, and do equal right to the poor and to the rich." Earlier, William Bradford Reynolds, President Reagan's assistant attorney general for civil rights, had denounced the "radical egalitarianism" of Rehnquist's colleague and the Court's senior associate justice, William J. Brennan, Jr., who, Reynolds charged, had "allowed his liberal orthodoxy to shape his jurisprudence." During the White House ceremony, by contrast, the president praised Rehnquist as a "brilliant" jurist who understood that "government by the people requires judicial restraint." By that point, however, the new chief justice's critics had raised serious questions regarding Rehnquist's commitment to the Constitution and his judicial oath, as well as concerns about his personal candor and integrity.
The Rehnquist Confirmation
Opposition to Chief Justice Rehnquist's confirmation by the U.S. Senate covered a wide-ranging array of issues, but several were subjected to extensive scrutiny in the Senate judiciary committee and the press. First, there were the memoranda he had written as a clerk to Justice Robert H. Jackson from 1952 to 1953. In the most publicized, entitled "A Random Thought on the Segregation Cases," Rehnquist had written that in Brown v.Board of Education and companion school desegregation cases the Warren Court was "being asked to read its own sociological views into the Constitution" and to adopt a position "palpably at variance with precedent and probably with legislative history." The pre-1937 Court—the old Court—and such justices as James McReynolds had erred, Rehnquist asserted, in writing their personal laissez-faire economic views into the Constitution. He added,
If this Court, because its members individually are "liberal" and dislike segregation, now chooses to strike it down, it differs from the McReynolds court only in the kinds of litigants it favors and the kinds of special claims it protects. To those who would argue that "personal" rights are more sacrosanct than "property" rights, the short answer is that the Constitution makes no such distinction.
The memorandum appeared equally unsympathetic to the role of the Constitution and Court as protectors of minority rights.
One hundred and fifty years of attempts on the part of the Court to protect minority rights of any kind—whether those of business, slaveholders, or Jehovah's Witnesses—have all met the same fate. One by one the cases establishing such rights have been sloughed off, and crept silently to rest. If the present Court is unable to profit by this example, it must be prepared to see its work fade in time, too, as embodying only the sentiments of a transient majority of nine men.
And what of Plessy v. Ferguson (1896) and its "separate but equal doctrine"?
I realize that it is an unpopular and unhumanitarian position, for which I have been excoriated by "liberal" colleagues, but I think Plessy ... was right and should be re-affirmed. If the Fourteenth Amendment did not enact [Herbert] Spencer's Social Statics, it just as surely did not enact Myrdahl's [sic] American Dilemma.
Two other Rehnquist memoranda pertained to Terry v. Adams (1953), in which the Court struck down an unusual version of the white primary. In one, he recommended that Justice Jackson vote to grant certiorari review of the case, but confessed to difficulty in "being detached about this case, because several of the [Yale law professor Fred] Rodell school of thought among the clerks began screaming as soon as they saw this that 'Now we can show those damn southerners, etc.'" He added, "I take a dim view of this pathological search for discrimination, a la [NAACP leader] Walter White, [Justice Hugo L.] Black, [Justice William O.] Douglas, Rodell, etc., and as a result I now have something of a mental block against the case."
In the second of the Terry memoranda, Rehnquist suggested what approach might be taken should Justice Jackson decide to dissent in the case. He recommended, for example, that the justice include "ideas" Jackson had recently expressed that "the constitution does not prevent the majority from banding together, nor does it attaint success in the effort." Elaborating, Rehnquist wrote,
It is about time the Court faced the fact that the white people [in] the South don't like the colored people; the constitution restrains them from effecting this dislike thr[ough] state action, but it most assuredly did not appoint the Court as a sociological watchdog to rear up every time private discrimination raises its admittedly ugly head. To the extent that this decision advances the frontier of state action and "social gain," it pushes back the frontier of freedom of association and majority rule. Liberals should be the first to realize, after the past twenty years, that it does not do to push blindly through towards one constitutional goal without paying attention to other equally desirable values that are being trampled on in the process.
This is a position that I am sure ought to be stated; but if stated by [Chief Justice Fred M.] Vinson, [Sherman] Minton, or [Stanley] Reed it just won't sound the same way as if you state it.
In a December 8, 1971, letter to Senate judiciary committee chairman James Eastland (D-Miss.) following hearings on his nomination as an associate justice, Rehnquist recalled that his Brown memorandum "was intended as a rough draft of a statement of" Justice Jackson's views, rather than his own position on the school segregation cases. During hearings on his confirmation as chief justice, he persisted in that explanation, although also suggesting that time may have blurred his memory. He asserted, too, that at the time the school segregation cases were before the Supreme Court, he thought that Plessy had been "wrongly decided ..., that it was not a good interpretation of the equal protection clause to say that when you segregate people by race, there is no denial of equal protection." Noting, however, that Plessy had been "on the books" for sixty years and that the same Congress that developed the Fourteenth Amendment had required segregation in District of Columbia schools, Rehnquist also testified that he did "not think I reached a conclusion" as Justice Jackson's clerk whether Plessy should be overruled.
Senate Democrats pressed the nominee to clarify his position. At one point, for example, Senator Joseph R. Biden, Jr. (D-Del.) cited a recent newspaper article claiming that Rehnquist had strongly defended Plessy in luncheon debates with other clerks during Supreme Court review of the segregation cases. Rehnquist conceded that he was "sure" he had defended Plessy "around the lunch table" but insisted that he did not think he "ever really finally settled in my own mind" whether Plessy should be overruled. Senator Howard Metzenbaum (D-Ohio) seemed especially impatient with portions of the Rehnquist memoranda and the nominee's efforts to suggest that they were a reflection of Justice Jackson's, rather than his own, views. "You, as a clerk, said," Metzenbaum observed, 'I take a dim view of this pathological search for discrimination a la Walter White, ... etc.' ... Is it not the fact that at the time you did not have to have a pathological search for discrimination in order to find it because it was such a reality of life?" "I think it probably was," Rehnquist responded. Later, in another reference to Rehnquist's Terry memorandum, Metzenbaum asked, "Did you, in all of the time you worked with Justice Jackson, ever hear him say something like the following: It is about time that the Court faced the fact that the white people of the South do not like the colored people?" "I simply cannot recall at this time," the nominee replied.
Conservative Republicans on the judiciary committee sought to minimize the Brown memorandum's potential impact. Not surprisingly perhaps, given his own history as a rabid segregationist and 1948 Dixiecrat presidential candidate, committee chairman Strom Thurmond (R-S.C.) took little part in that effort. But Utah Republican Orrin Hatch vigorously defended the nominee.
During Senate consideration of Rehnquist's 1971 nomination as associate justice, his coclerk Donald Cronson, then an executive in the Mobil oil company's London office, had cabled a message to Rehnquist later reprinted in the Congressional Record. In that cablegram, Cronson recalled that the Brown memorandum was "my work at least as much as it is yours and that it was prepared in response to a request from Justice Jackson." Prior to preparation of the memorandum, which bore only Rehnquist's initials, Cronson asserted, the two had collaborated in preparing another memorandum contending that Plessy had been wrongly decided, but also arguing that the Court should leave to Congress any change in segregation policy. Later, according to Cronson, Justice Jackson had asked for a second memorandum "supporting the proposition that Plessy was correctly decided." Rehnquist typed that memorandum, Cronson remembered, "but a great deal of the content was the result of my suggestions."
During his questioning of Rehnquist, Senator Hatch first expressed reluctance to bring up "matters that have occurred 34 or 35 years ago" and bemoaned the committee's preoccupation with "these ancient events as though they are important today." Then, seizing on Cronson's recollections and published assertions that both he and the nominee thought that Plessy was wrong, the senator defended Rehnquist's version of the origins and nature of the Rehnquist Brown memorandum, declaring, "It is significant that the only other person with a firsthand knowledge about this segregation memorandum agrees with your account that it was drafted at Justice Jackson's request to reflect a particular point of view.... It is not a reflection of your own views according to the only other person who had firsthand knowledge or recollection of the memorandum. In fact, your co-clerk has stated that he collaborated with you on the drafting of the memo and that it may have been more a product of his own than of your own. That answers that question."
But hardly, of course, to everyone's satisfaction. Soon, Massachusetts Democrat Edward M. Kennedy placed in the record the detailed analysis of the Rehnquist memorandum that journalist Richard Kluger had compiled for Simple Justice, his exhaustive study of Brown. "Taking the careers and judicial assertions of both [Rehnquist and Jackson] in their totality," Kluger had concluded, "one finds a preponderance of evidence to suggest that the memorandum in question—the one that threatened to deprive William Rehnquist of his place on the Supreme Court—was an accurate statement of his own views on segregation, not those of Robert Jackson, who, by contrast, was a staunch libertarian and humanist."
The evidence that led Kluger to his conclusion was very persuasive. With respect to Cronson's recollections, for example, he questioned why Rehnquist, in his 1971 letter to the Senate, had not mentioned the first memorandum; why, if Jackson requested two memoranda taking opposite positions on Plessy, Rehnquist had claimed that the second memorandum, the one bearing his initials, represented Jackson's views; why, if Rehnquist and Cronson collaborated on both memoranda, each carried the initials of just one of them and their styles were quite different; and why Rehnquist had not informed the Senate that Cronson coauthored the controversial memorandum and even considered it more his work than Rehnquist's, if indeed its preparation had been a joint effort. Justice Jackson's secretary Elsie Douglas, Kluger added, had "sharply denied" Rehnquist's account, calling it "incredible on its face" and charging that Rehnquist had "smeared the reputation of a great Justice."
Kluger cited other concerns as well. He doubted that the memoranda would have carried such "strikingly inappropriate" titles as "A Few Expressed Prejudices on the Segregation Cases" or "A Random Thought on the Segregation Cases" if intended for Justice Jackson's use at a conference of the justices and as an expression of his personal views. He seriously questioned, too, whether Jackson would have been at all inclined to deliver "so crude and elementary" an attack on the pre-1937 Court's protection of business interests as that contained in the memorandum bearing Rehnquist's initials, especially since all the members of the Court but one were veteran New Dealers "entirely familiar with the ... Court's pre-1937 biases." Or that Jackson would have "disparaged," as Rehnquist's memorandum did, the Court's attempt to protect the interests of minority groups, "when Jackson himself wrote many a decision protecting minority rights" including his memorable opinion for the Court in West Virginia Board of Education v. Barnette, upholding the rights of Jehovah's Witnesses—one of the very minority groups referred to in Rehnquist's memorandum. Or that Jackson would have shared with other justices "anything remotely approaching" the assertion in Rehnquist's memorandum that he had been "excoriated by 'liberal' colleagues" for his position on segregation. "A far more plausible explanation," wrote Kluger, "might be that the T of the memo is Rehnquist himself, referring to the obloquy to which he may have been subjected by his fellow clerks, who discussed the segregation question over lunch quite regularly, who were almost unanimous in their belief that Plessy ought to be reversed, and who were, for the most part, 'liberal.'"
In support of this interpretation, Kluger cited an article Rehnquist had written for a 1957 issue of U.S. News & World Report, in which the future justice complained of the "liberal" biases of Supreme Court clerks, including "extreme solicitude for the claims of Communists and other criminal defendants, expansion of federal power at the expense of State power, [and] great sympathy toward any government regulation of business" enclosing the word "liberal" in the same "telltale quotation marks" he had used in the Brown memorandum. As evidence that Rehnquist was "ideologically a pole apart" from other clerks, Kluger also quoted a fellow clerk, who, at the time of Rehnquist's initial appointment to the Court, characterized him as "a reactionary," adding, "I would expect him to be a reactionary today, but you never know what a person will do once appointed." Kluger questioned, too, why, if both the Rehnquist and Cronson memoranda were intended to state Justice Jackson's views, the latter memorandum was clearly from a clerk to his justice, with Cronson noting at one point, "One of the main characteristics of your work on this Court is a reluctance to overrule existing constitutional law" (emphasis added).
Kluger found equally convincing other evidence that Rehnquist's Brown memorandum reflected his views rather than Justice Jackson's. In a 1959 article, Rehnquist cited Brown in bemoaning the "absence of stare decisis in constitutional law." An "unabashedly liberal" Stanford law school classmate termed Rehnquist "brilliant" but "so far-out politically that he was something of a joke." As a Phoenix lawyer, Rehnquist had given a 1957 speech denouncing Justices Black and Douglas, among others, as "left-wing," had been an ardent supporter of conservative Arizona senator Barry Goldwater, had opposed a local antidiscrimination ordinance, and had attacked a 1967 Phoenix school desegregation program. As assistant attorney general in charge of the Office of Legal Counsel in the Nixon Justice Department, he was the department's "most ardently prosecutorial advocate of wiretapping, government surveillance, preventive detention, and other so-called law-and-order techniques of a totalitarian cast." He had also drafted the administration's 1970 constitutional amendment proposal opposing busing as a school desegregation tool. His Supreme Court record to date, added Kluger, had been overwhelmingly conservative, with the justice regularly voting to restrict civil rights and liberties, to retain the death penalty, and to side with business in antitrust cases and against unions in labor litigation. Such a professional, political, and judicial record was entirely consistent, in Kluger's judgment, with the conclusion that Rehnquist's Brown memorandum reflected his own views, not those of the justice he served.
Rehnquist's roles as government lawyer and justice in disputes over military surveillance of civilian dissidents were another source of intense interest and concern to the judiciary committee. Shortly after his initial appointment to the Supreme Court, Rehnquist had participated in Laird v. Tatum (1972), in which a five-four majority dismissed on standing grounds a challenge to Army surveillance of civilians, claimed to impose a chilling effect on the First Amendment rights of those opposed to U.S. military policies. Following announcement of the Court's decision, the American Civil Liberties Union (ACLU), which had furnished counsel for the Laird plaintiffs, filed a petition for rehearing and a motion that Justice Rehnquist recuse, or disqualify, himself from further participation in the case. As assistant attorney general in the Nixon administration, ACLU lawyers contended, Rehnquist had appeared as an expert witness in Senate hearings on military surveillance practices; he had intimate knowledge of the evidence in the Laird case and had made public statements questioning the merits of the Laird plaintiffs' allegations. Rehnquist refused to recuse himself and, in a highly unusual move, issued a memorandum denying that his prior connection with the case constituted a conflict of interest; noting that Justices Black and Frankfurter, among others, had participated in cases involving legislation they had helped to draft; and emphasizing that one justice's disqualification could produce an affirmance of the ruling below by an equally divided Court.
Reacting editorially at the time, the New York Times observed that the government had won the Laird case only as a result of Justice Rehnquist's decision to furnish the fifth vote to overturn a federal appeals court decision invalidating the Army's surveillance program. His claim that he had a duty to participate to assure a decision in the case, asserted the Times, "seems only to underscore the impropriety of a former representative of Government to continue the Government's case on the Supreme Court—the court of last resort."
Judiciary committee members examining Rehnquist's fitness to be chief justice found his participation in Laird equally disturbing, especially since congressional testimony the nominee had given while a member of the Nixon administration suggested that he had prejudged the Laird case prior to his appointment to the Court. As a witness before the Senate subcommittee on constitutional rights, chaired by North Carolina Democrat Sam J. Ervin, Jr., Rehnquist rejected Senator Ervin's assumption that the Laird plaintiffs had standing to challenge the military surveillance program in the courts. "My only point of disagreement with you, Rehnquist told the senator at that time, "is to say whether as in the case of Tatum v. Laird that has been pending in the Court of Appeals here in the District of Columbia that an action will lie by private citizens to enjoin the gathering of information by the executive branch where there has been no threat of compulsory process and no pending action against any of those individuals on the part of the Government." That was precisely the rationale the Supreme Court, with Rehnquist participating, would use in overturning the lower court ruling that had invalidated the surveillance program.
Senator Kennedy entered portions of the Ervin hearing transcript into the record, quoted the part cited above, and asserted, "You had basically made up your mind on that issue, had you not, Mr. Rehnquist?" When the nominee objected to being obliged to defend action he had taken as a justice, Kennedy charged that Rehnquist "basically resented those [antiwar] demonstrators [against whom the surveillance program was directed]" adding, "You made up your mind evidently that those demonstrators were not going to get their way in the Supreme Court, even if you had to sit on the case to break a tie, even if you had to violate the ABA [American Bar Association] rules [regarding judicial ethics] and the fundamental principles of justice to do it." Citing research that had reached the same conclusion, Kennedy asked the nominee for his reaction to such claims. "That I was performing a judicial act," Rehnquist replied, "and that I ought not to be called upon somewhere else to justify this."
Judiciary committee members also heard from witnesses who complained that between 1958 and 1964 Rehnquist had harassed blacks and Hispanics at Phoenix polling places. When such charges were raised in 1971 following Rehnquist's appearance before the committee for hearings on his nomination as associate justice, Senator Eastland, the committee chair, had declined to reconvene the committee. But Rehnquist wrote Eastland a letter denying the accusations and asserting that "[i]n none of these years did I personally engage in challenging the qualifications of any voters." During Senate deliberations on his nomination as chief justice, witnesses opposing his confirmation again raised such charges. One witness described a "shoving match" involving the nominee that erupted at a Phoenix polling place when a black voter became angry when Rehnquist, the witness alleged, challenged the voter's credentials. "[Rehnquist] had two cards in his hand," the witness recalled. "One was the state constitution and the other was the U.S. Constitution. And if he thought you were down and out, and illiterate, he would challenge that vote" James S. Brosnahan, a former federal prosecutor in Phoenix who by 1986 was a senior partner in a San Francisco law firm, testified that he had gone to a polling place during one election to investigate allegations that Republican workers were harassing minority voters. Until 1964, Brosnahan noted, it had been legal to challenge voters if there was reason to believe they were illiterate, but not to stop persons in a voting line without reason to believe they were unqualified. "At that polling place, I saw William Rehnquist, who was known to me. He was serving on that day, as a challenger of voters. That is to say, the complaints had to do with his conduct." Another witness testified that he observed a Republican official, whom he later identified from a newspaper photograph as Rehnquist, questioning the voter qualifications of "everybody" at one precinct in 1964. The two, he added, had a long and tense exchange, at one point going "eyeball to eyeball." Yet another witness charged that in 1960 and 1962 he had seen Rehnquist at a precinct, telling other Republicans they should challenge "illiterates" and others unqualified to vote.
Noting that all such witnesses had been Democratic activists, Republicans on the judiciary committee complained of partisan bias against the nominee, When Senator Hatch questioned the accuracy of James Brosnahan's memory, however, the former federal prosecutor's response drew loud applause from the audience. Had he not been "absolutely" certain he had interviewed Rehnquist that day, an indignant Brosnahan countered, "I would be home having my Friday afternoon lunch at Jack's [a San Francisco restaurant] and I would not be here in front of you." And when Rehnquist stated that he did not "believe" he had ever personally challenged a voter during his years in Phoenix, Senator Metzenbaum shot back, "Mr. Justice, I am not talking about your being able to remember where you were on the third day of June 1952, I am talking about whether you ever confronted people and said to them: 'Can you read this Constitution?' 'What educational background do you have?' Challenge them in their right to vote. And you are saying that you do not remember. And I am saying to you, is it possible that a man as brilliant as you, could not remember if he had done that?" "Senator," Rehnquist replied, "challenging was a perfectly legitimate thing." "But you told the Senate that you never challenged anybody," an exasperated Metzenbaum rejoined. "I believe I told the Senate ... I did not think I had challenged" voters, Rehnquist responded.
Yet another target of concern for committee Democrats was the nominee's willingness to sign deeds containing racial and religious restrictions. A deed for a house Rehnquist had purchased in Maricopa County, Arizona, in 1961 and another for a Greensboro, Vermont, summer home, purchased in 1974, contained such covenants. Neither deed bore Rehnquist's signature, and Senator Hatch took his colleagues and the press to task for assigning any weight to the matter. Calling the issue "the biggest 'red herring' I have seen in the whole hearing," Hatch emphasized that the Supreme Court's 1948 decision in Shelley v. Kraemer had made such covenants unenforceable and scorned committee Democrats for making "a big brouhaha about something this ridiculous." For his part, Justice Rehnquist testified that he had first learned of the covenants" [t]he last couple days" and assured the committee that he "plan[ned] to do something about it." Several days after the hearings adjourned, however, Rehnquist informed the committee that his lawyer had told him in 1974 that the deed to his Vermont property had contained a restriction against ownership by "members of the Hebrew race," yet the justice had taken no action.
When the hearings ended on August 1, Democratic senators were attempting to secure internal memoranda Rehnquist had written from 1969 to 1971, when he was in the Nixon Justice Department. Initially President Reagan invoked executive privilege and refused to turn over the memoranda to Congress, prompting Senator Kennedy to accuse the administration of "stonewalling" to conceal advice Rehnquist might have given President Nixon and Attorney General John Mitchell in the years leading to the Watergate scandal and Nixon's resignation from the presidency.
Ultimately, Reagan gave up the documents sought, but charges continued to surface regarding the nominee's fitness for the Court's center seat. One set of concerns focused on a medical report submitted to the judiciary committee on August 11 regarding Rehnquist's dependency for nearly a decade on a powerful painkilling drug. Dr. Freeman H. Cary, who had recently retired as the attending physician for Congress, prescribed the hypnotic drug Placidyl from 1972 to 1981 for Rehnquist to relieve his chronic back pain. According to the medical report, compiled by Dr. William Pollin, a former federal drug abuse official, Justice Rehnquist's daily dosage had been increased from 500 milligrams in the early 1970s to 1500 milligrams, somewhat above the maximum legal dosage, by 1976, where it remained in 1981, when Rehnquist was admitted to George Washington University hospital for drug-dependency treatment. During the FBI's background check of the nominee, Dr. Cary had told agents that he was concerned about the dosage and had made that clear to Rehnquist on several occasions. Dr. Pollin's report indicated that the nominee was no longer using the drug on a daily basis and suffered no drug "dependency" while Senator Hatch characterized Rehnquist as simply "a very compliant patient" who had been "overly prescribed by the doctors"; when asked, Hatch said that, in his judgment, the report should not be made public. But another committee member, Democrat Paul Simon of Illinois, called for the report's release and announced his decision to oppose confirmation, although emphasizing that his opposition was based on concerns about the veracity of the nominee's testimony before the committee and poor record on civil rights, not any fear that Rehnquist remained addicted to Placidyl.
On August 14, the judiciary committee voted thirteen-five, with Democrats casting the negative votes, to recommend Rehnquist's confirmation to the full Senate. That same day, however, the nominee's disabled brother-in-law accused Rehnquist of unethical conduct in the management of a family trust fund. Rehnquist had drawn up the trust in 1961 at the request of his dying father-in-law, San Diego physician Harold Davis. Established for Harold Dickerson Cornell, the brother of Rehnquist's wife Natalie, the document stipulated that Cornell, a victim of multiple sclerosis, was to receive funds from the $25,000 trust whenever he "was unable to provide for himself in the manner to which he was accustomed." A year after the trust was established, Cornell, then forty-nine and a San Diego lawyer earning about $50,000 a year, was forced to retire as a result of his debilitating illness. In an interview with a New York Times reporter, Cornell claimed that he was poverty-stricken soon after retiring, making stew from bones, living off a $96 monthly Social Security check. At one point, he said, his financial condition became so desperate that he asked his family at an annual reunion if he could obtain funds from another trust established by his parents for emergencies and educational expenses. "Bill [Rehnquist] was at that meeting," Cornell recalled. "He certainly knew about my trust and he knew I was disabled and in serious financial straits. Bill and the others decided I didn't have the right to the emergency trust fund even though I was 100 percent disabled. And they never said, 'Hey, you have your own trust.'" Not until 1982, when one of his sisters became a trustee and her lawyer advised her to inform Cornell, did he first learn of the trust.
Justice Rehnquist was teaching at Pepperdine University in Malibu, California, when his brother-in-law's interview appeared in the press, and a spokesperson at the Court indicated that it was the justice's policy not to discuss matters relating to his confirmation with the media. Several other members of Cornell's family suggested that Rehnquist and others had followed his father-in-law's wishes in concealing the trust from Cornell because he spent money carelessly. But an exasperated Cornell asked, "How could I squander trust money? It's ridiculous." Legal ethics scholar Stephen Gillers contended, moreover, that Rehnquist's "failure to act when he [through his wife] personally stands to gain by the failure is especially wrong." Four Senate Democratic opponents of Rehnquist's nomination asked judiciary committee chairman Strom Thurmond to reopen the FBI investigation of the nominee's background. Thurmond passed the request on to the Justice Department, but Senate Republican leader Robert Dole opposed the petition, noting that Cornell's claims and the results of the FBI's investigation were already known to the judiciary committee when it voted to recommend confirmation to the full Senate.
Mindful that two of President Nixon's Supreme Court nominees, Clement F. Haynsworth and G. Harrold Carswell, had been rejected by the Senate after receiving a positive judiciary committee recommendation, a coalition of civil rights groups scheduled a public forum in opposition to confirmation at the Dirksen Senate Office Building. Organizers of the forum also circulated a Louis Harris survey, conducted in August, indicating that the public opposed confirmation 58 to 30 percent nationwide. Women's groups circulated a nine-page memorandum Rehnquist had signed in 1970 opposing the Equal Rights Amendment on the ground that its adoption would "hasten the dissolution of the family," turning "'holy wedlock' into 'holy deadlock.'" Judith Lichtman, executive director of the Women's Legal Defense Fund, contended that the memorandum "reflect[ed] a deep-seated animus to women's basic rights as partners in families." But the nominee's partisans dismissed it as a routine summary of possible legal objections to the proposed amendment, rather than a reflection of Rehnquist's personal views.
As the full Senate prepared to consider the nomination, opponents also raised again the ethical concerns connected with Justice Rehnquist's refusal to recuse himself from participation in Laird v. Tatum as well as other matters. Opponents made public a letter Yale law professor Geoffrey C. Hazard, Jr., a Republican and a principal drafter of the ABA's Code of Judicial Conduct, had written to the judiciary committee, in which Hazard had suggested that the nominee's participation in Laird may have been unethical and that he also may have violated "a duty of candor to the Senate" in testimony regarding his role in the case. One hundred ten other law professors also joined in a statement indicating that he may have acted unethically or testified untruthfully on a variety of issues, including his testimony that he was not aware of the restrictive covenant in the deed to his Vermont summerhouse.
When the debate moved to the Senate floor on September 11, Rehnquist's opponents reiterated such charges, while Senator Hatch characterized their arguments as "much ado about very little" and Senator Dole reasoned "that the people voted for Ronald Reagan by landslide proportions in 1980 and 1984," adding that "they expect the President to carry their mandate all the way to the Supreme Court." When it was over after five days of debate, Rehnquist won confirmation by a comfortable sixty-five-thirty-three vote, with forty-nine Republicans and sixteen Democrats favoring, and thirty-one Democrats and two Republicans opposing, confirmation. Even so, the nominee received more negative votes than any previous justice confirmed by the Senate. Asked whether he had any regrets about the intense controversy his nomination had provoked, Rehnquist responded that the debate was simply part of the constitutional process, but added, "I'm not going to address myself really to the past. That's over, that chapter is closed, and I'm looking forward to the future and to trying to be a good Chief Justice." For his part, President Reagan praised the Senate's action and privately, according to Senator Dole, termed his new chief justice's opponents a "lynch mob."
The Scalia Appointment
Almost forgotten in all the furor over Chief Justice Rehnquist's confirmation was the president's choice to succeed the new chief as associate justice. Antonin Scalia, fifty-year-old New Jersey native and son of a Sicilian immigrant who became a literary scholar and professor of Romance languages at Brooklyn College, was to be the first Italian-American justice. Product of a strict Roman Catholic family and education and characterized by a classmate as an archconservative Catholic even in high school, Scalia was a history major at Georgetown University and joined a Cleveland-based corporate law firm following completion of a Harvard law degree in 1960. Considered by colleagues to be outspokenly and deeply conservative, even in a firm whose principal clients were such major business interests as TRW and Republic Steel, he remained with the firm until 1967, when he joined the law faculty at the University of Virginia. Beginning in 1972, he held a variety of positions in the Nixon administration, ultimately becoming head of the Justice Department's Office of Legal Counsel, the post Justice Rehnquist had earlier held, shortly before the president's resignation.
Scalia remained with the Justice Department until the end of the Ford administration in January 1977, often championing the executive against judicial and congressional authority, including the position, eventually rejected by the Supreme Court, that Nixon, not the government, had title to tapes and documents relating to the Watergate controversy. During the Carter years, Scalia returned to academics and conservative intellectual pursuits, becoming a visiting professor at Georgetown University's law school, a scholar-in-residence at the American Enterprise Institute, a University of Chicago law professor, and coeditor of two scholarly journals promoting federal and state deregulation of the market. He also lectured and published widely and critically on judicial activism and controversial Supreme Court decisions, especially the Court's recognition of an abortion right in Roe v. Wade and partial acceptance of affirmative action programs in Regents of the University of California v. Bakke, which had in 1978 overturned the use of racial quotas in university admissions but also permitted use of racial, gender, and other nonmerit factors to promote a university's important interest in a diverse student body. When lawyers and law students disturbed by what they considered a liberal bias in the nation's law schools formed the Federalist Society in 1981 to combat that supposed trend, they selected Scalia as the organization's faculty adviser. One of the society's founders was Steven G. Calabresi, who would become a special assistant to Attorney General Edwin Meese III in the Reagan Justice Department. One of the society's financial benefactors was a foundation endowed by Richard Mellon Scaife, archconservative Pittsburgh newspaper publisher and heir to the Mellon fortune, who would later finance a variety of schemes to discredit President and Mrs. Clinton; partially funded a deanship at Pepperdine University initially offered to Kenneth Starr, the Bush administration solicitor general and independent counsel investigating the Clintons; and reputedly paid Starr's chief prosecution witness against the president and first lady for his cooperation in the Whitewater proceedings. Scalia's record and connections hardly damaged his standing with the Reagan administration, and in 1982 he was awarded a seat on the Court of Appeals for the District of Columbia. His circuit decisions in homosexual rights, libel, and other issue areas further enhanced his conservative credentials, leading ultimately to his nomination to succeed William Rehnquist as associate justice.
Reaction to Scalia's nomination in the press and scholarly commentary was mixed and not always predictable. Columnist and Nixon administration apologist William Satire scorned Scalia's narrow interpretation of the First Amendment, terming it "Agnewism with a scholarly face," in a reference to President Nixon's first, and disgraced, vice president, but found "curiously reassuring" the assertion of a Reagan administration insider that "[i]t's more important [to Scalia's selection] that he's an Italian Catholic with nine kids." Former Columbia University law dean and Yale president-designate Benno C. Schmidt, Jr., inaccurately predicted that the nominee's "gregarious, winning personality" would win him "tremendous" influence on the Rehnquist Court, while journalist Anthony Lewis attempted to console liberals left "in a state of numbed foreboding" by Scalia's selection with the impression that he was "not a judge who willfully distorts precedents and hides difficulties in order to reach a predetermined result."
How judiciary committee Democrats might have treated Scalia's nomination had the hearing on his confirmation not followed the often intense Rehnquist proceedings is difficult to assess. Harvard law professor Laurence E. Tribe had editorialized that the conservative credentials of both Rehnquist and Scalia were well-known, that President Reagan "quite properly took them into account," and that "[t]he Senate should do likewise." By the time the committee got to Scalia, however, the members, as one reporter put it, "seemed worn out and distracted." While the nominee had developed a lengthy paper trial of publications and speeches detailing his judicial and constitutional views, moreover, he was spared the charges of ethical impropriety, racial bias, and lack of candor that had dominated the Rehnquist hearings.
In his opening statement at the Scalia hearings, Montana Republican Alan Simpson sarcastically recalled the unfairly harsh treatment he thought Democrats on the committee had given Justice Rehnquist. Beginning by welcoming Scalia "to the pit," Simpson launched into a tirade against "the 'great hunters' [who] have been out to tack the 'pelt' of Bill Rehnquist on the wall of the den." When he went on to complain of the charges raised by Rehnquist's detractors, declaring, "[s]tonewalling, wiretapping, 'cover-up.' Lord sake, there is not one of us here at this table that has not dabbled in all that mystery," some in the audience wondered aloud, according to one journalist, "where personal confession left off and poetic license began." Courtly Alabama Democrat Howell Heflin, although praising Scalia as a "fine jurist" with a "brilliant mind," expressed concern that the nominee "had been elusive, evasive, and had perhaps overly hidden behind some concepts of separation of powers" in declining to respond to certain questions put to him about his judicial and constitutional philosophy. But in the main, the committee gave Scalia an easy run. In his opening statement, Senator Heflin joked "that my great grandfather married a widow who was married first to an Italian American." As part of a contingent of senators presenting the nominee to the committee, New York Republican Alfonse D'Amato told Scalia that "Mama D'Amato ... sends her best." And even Senator Metzenbaum, the nominee's most persistent interrogator, good-humoredly reproached Scalia for showing "bad judgment in whipping me on the [tennis] court," to which the quick-witted nominee, foreshadowing the reputation for biting rhetoric he was to establish on the supreme bench, promptly responded, "It was a case of my integrity overcoming my judgment."
For his part, Judge Scalia adroitly avoided presenting the image of an inflexible conservative ideologue. At one point, for example, he even testified that he was a "little wishy-washy" on whether he accepted a "strict constructionist" or "evolutionary" interpretation of the Constitution's more general language. While conceding that he should not be regarded "as someone who would be likely to use the phrase, living Constitution" he also asserted that he attempted to following the "original meaning" of constitutional provisions rather than the "original intent" of their framers and thus might accept some degree of evolutionary development in the meaning of general constitutional language. A "strict original intentist," he explained, would contend, for example, "that even such a clause as the cruel and unusual punishment clause would have to mean precisely the same thing today that it meant in 1789 ... so that if lashing was fine then, lashing would be fine now. I am not sure I agree with that. I think that there are some provisions of the Constitution that may [have] a certain amount of evolutionary content within them." At the same time, he thought the Constitution was "obviously not meant to be evolvable so easily that in effect a court of nine judges can treat it as though it is a bring-along-with-me statute and fill it up with whatever content the current times seem to acquire."
At times Scalia had difficulty defending what skeptical senators considered his extreme earlier statements and writings. Senator Metzenbaum quoted the nominee's assertion that "[i]t would seem to be a contradiction in terms to suggest that a State practice engaged in and widely regarded as legitimate from the early days of the Republic down to the present time, is unconstitutional. I do not care how analytically consistent with analogous precedents such a holding might be, nor how socially desirable in a judge's view. If it contradicts long and continuing understanding of the society, as many of the Supreme Court's recent Constitutional decisions referred to earlier, in fact, do, it is quite simply wrong." Metzenbaum found such language comparable to contending that "the Constitution means what the majority says it means" and wondered how it could be squared with the Court's decisions outlawing segregated schools despite their long tradition. Scalia's response was hardly convincing. Ignoring the Fourteenth Amendment's general language and the fundamental question whether segregation constituted discrimination, he replied that racial discrimination would be unconstitutional, even if practiced in all the states, because it was "facially contrary to the [Fourteenth Amendment's] language." Scalia added that he did "not know how a judge intuits that a particular practice is contrary to our most fundamental beliefs, to the most fundamental beliefs of our society, when it is one that was in existence when the Constitutional provision in question was adopted and is still in existence.... I worry about my deciding that [such an unenumerated right] exists. I worry that I am not reflecting the most fundamental, deeply felt beliefs of our society, which is what a constitution means, but rather, I am reflecting the most deeply felt beliefs of Scalia, which is not what I want to impose on the society."
Nor did he always seek to avoid confrontation with committee members. Asked about his membership from 1976 to late 1985 in the Cosmos Club, which excluded women from membership, he stated that he "certainly would not belong to a club that practiced racial discrimination," but added, "I do not consider [a single-sex organization] an invidious discrimination. I think there are a lot of other people who likewise do not consider it invidious discrimination." Asked about his assertion in a law review article that Justice Powell's mixed judgment on affirmative action in the Bakke case was "thoroughly unconvincing as an honest, hard-minded, reasoned analysis of an important provision of the Constitution," he insisted that he harbored "absolutely no racial prejudices," but "disagreed with affirmative action ... as the way to eliminate" racial discrimination.
Whatever misgivings his testimony may have created, however, Scalia's confirmation was never in doubt. Committee members who had divided thirteen-five in favor of Justice Rehnquist voted unanimously to approve Scalia's nomination. Senate floor debate on Rehnquist's confirmation had taken five days, Scalia's barely five minutes. Rehnquist received more negative votes than any previously confirmed justice, while Scalia won unanimous floor approval.
Table of Contents
| Preface | ix |
| Chapter 1 The Justices | 1 |
| Chapter 2 The Court | 37 |
| Chapter 3 Governmental Power | 69 |
| Chapter 4 The Double Standard | 101 |
| Chapter 5 Unenumerated Rights | 127 |
| Chapter 6 The Religion Clauses | 155 |
| Chapter 7 Freedom of Expression and Association | 179 |
| Chapter 8 Criminal Justice | 215 |
| Chapter 9 Equal Protection | 243 |
| Epilogue | 267 |
| Bibliographical Note | 271 |
| Notes | 273 |
| Index | 299 |
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