Column: Big exit

By Sam Harding-Forrester

The Supreme Court’s Chief Justice William Rehnquist died last Saturday, having endured a battle with the body’s mischief second only to that weathered by the late John Paul II. Coming after Justice Sandra Day O’Connor’s retirement, Rehnquist’s vacancy sets the stage for the political mudslinging many have anticipated since President Bush’s re-election. Frenzied reporters have labeled the death a “surprise”, much as they did O’Connor’s retirement. All this despite the fact that O’Connor made noises about retiring since the 2000 elections, and Rehnquist made noises about dying for a good while longer.

Rehnquist was, by all accounts, a superb leader of the court but built a flawed legacy as one of its judges. He began his term in 1972 as a conservative outlier on the Warren court, short ly after that dazzling a couple of decades during which the justices refined political districting, overturned segregation, shored up protections against police abuse and generally bettered our collective lot. Rehnquist, who once criticized Brown v. Board of Education as a misguided sop to “minority rights,” viewed such meddling as liberal mischief and launched a quiet revolution through his own term as Chief Justice. His principles of state sovereignty and the “strict constructionist” interpretation of the constitution have long since moved toward dominance on the bench. Along the way, Rehnquist restricted the rights of criminal defendants, expanded the role of religion in public life and spruced up his robe with gold stripes lifted from a getup in Gilbert and Sullivan’s “Lolanthe.” Until Justices Kennedy and O’Connor discovered the joys of swinging votes, it was enough to inspire conservative dreams of watching government shrink faster than Reagan’s memory.

Nonetheless, Rehnquist’s demise has doubtless struck our President as a morbid sliver of political redemption. It allows him to eulogize by prattling on about “character,” and it invites an easy, but prominent, show of leadership in choosing a successor. And this comes at the end of a week in which Bush has upgraded his incompetence in spectacular style. In a catastrophe anticipated by our Federal Emergency Management Agency in that golden era before Bush named an unqualified horse-show organizer as its head, New Orleans was all but razed by a hurricane. All this as our administration blithely dawdled its way to a response. Wanton devastation in Iraq might fly, but it’s much less politically popular when it happens on the home front.

Bush thus embraced the task of replacing Rehnquist with gusto, re-nominating his proposed successor to O’Connor for the role of Chief less than 36 hours after Rehnquist expired. John Roberts will find a conservative icon like Rehnquist a hard act to follow, but follow is precisely what Roberts seems likely to do. Having clerked for Rehnquist in the 1980s and maintained a friendship since, he shares his predecessor’s staunch commitment to state sovereignty and is even firmer in his strict constructionism. This established conservatism makes him unlikely to repeat the bait-and-switch that Justices Kennedy and Souter managed, rewarding their Republican backers with a steady drift to the left. Roberts’s fully crystallized judicial philosophy also makes him unlikely to replicate O’Connor’s unpredictable case-by-case approach. And his aversion to radicalism of any sort suggests he will avoid the pugnacious conservatism of Justices Scalia and Thomas.

What we have, then, is a Rehnquist replacement likely to resemble his predecessor more than his future colleagues. A Rehnquist redux, of course, is not what liberals want. But given the alternatives, they should count their blessings. Bush could have elevated his beloved Scalia, a curmudgeonly ball of bile who presides over cases like an evangelizing priest joining Church and State in holy matrimony. Democrats also face a Republican majority in the Senate, and likely public skepticism, should they filibuster against Roberts. Their limited resources would be better conserved for Borking one of the Scalia clones Bush might trot out next, should he aim to appease those Republicans who find even Roberts and Rehnquist excessively moderate.

Sam Harding-Forrester is a senior in LAS. His column appears every Thursday. He can be reached at [email protected]