On Law: Hail to the chief (justice)

By MICHAEL KIRKLAND, UPI Legal Affairs Correspondent  |  May 9, 2003 at 2:41 PM
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WASHINGTON, May 8 (UPI) -- If you predict something often enough, sooner or later you will be right.

So it is with retirements from the Supreme Court. As of now, the high court has enjoyed one of its longest periods of stability in history: It's been nine years since Justice Harry Blackmun retired, and President Bill Clinton picked Chief U.S. Circuit Judge Stephen Breyer to succeed him.

But in each of the last several years, at the end of each court term, at least one publication or writer from outside the Supreme Court has been predicting the imminent departure of Chief Justice William Rehnquist.

Usually, the "retirement" story would get some play, and those of us who cover the Supreme Court for a living would have to explain to our overly excited editors that it just wasn't going to happen.

Can't do that any more.

It's not that Rehnquist has suddenly given the slightest indication that he's stepping down. My personal belief that this may be his last term is mostly calculated intuition, more a conviction of the gut than of the mind.

Mainly, it's his age -- 78 -- the obvious pain in his body and an open window of political opportunity.

If Rehnquist wants the certainty that his successor will be a solid, like-minded conservative named by a Republican president and confirmed by a razor-thin Republican majority in the Senate -- if he wants to "dance with the gal that brung him" -- then he must act soon.

After all, Rehnquist was named to the high court by President Richard Nixon -- who called him "Renchburg" to his presidential cronies -- and raised to the chief justice's chair by President Ronald Reagan.

Though the forecast looks promising for the GOP, with a triumphant President George W. Bush enjoying high approval ratings and Republicans raising record amounts of campaign cash, the winds of political fortune are exceedingly fickle, and there is absolutely no guarantee that the GOP will control both the White House and the Senate beyond 2004.

If Rehnquist is leaving, you don't need to agree with his conservative judicial philosophy to realize you're going to miss him greatly.

When the chief justice writes an opinion, you know it's going to be as clear as the waters of his native Wisconsin and as concise and sharp as the bark of a judge's gavel. It's also going to have about the same amount of human warmth.

There is an affable gentleman lurking somewhere inside that icy Scandinavian-American exterior, but Rehnquist rarely allows him full play in a public setting. You get a glimpse when Rehnquist laughs at a joke or at word play, but then the lids on his eyes half close again, the lights glint on his glasses and you get the feeling that you're dealing with a true enigma.

He's most at home with what he considers his Supreme Court family, the 300-plus employees of the court, and can display a sentimental side during Christmas parties. He's least at home with journalists.

The ritual of bar admissions is a constant source of amusement for the Supreme Court press room.

Before each day's argument, members of the Supreme Court bar introduce other lawyers who are to be admitted to the bar -- you have to be a member of a court's bar to practice before the court.

Each bar member who has candidates to put forward advances to the podium as Rehnquist calls his or her name. The bar member nervously clears his or her throat, and begins: "Mr. Chief Justice and may it please the court."

The candidates stand as the member reads off their names, and at the end the member says he or she "is satisfied that each of them possesses the necessary qualifications."

Rehnquist then says, "Very well," names the candidates and says each of them "shall be admitted." The procedure never varies, and bar members are cautioned not to depart from the basic script.

When all the candidates have stood, Rehnquist tells them that the clerk will swear them in, "but before he does, I want to extend to each of you a warm welcome as a member of the bar and officer of this court."

I don't know why it is, but something about the way the chief justice offers a "warm welcome" is particularly funny, probably because there is such little apparent warmth in it.

And woe to the bar member who tries to improvise.

Last week, a certain federal judge who shall remain nameless, approached the podium to nominate his four law clerks for the Supreme Court bar. The judge, used to being the absolute authority back in his own courtroom, thought he'd take some liberties with the script.

The judge told the Supreme Court he was nominating his law clerks, but then began a little speech, saying although the candidates were his clerks, "they seem more like sons and daughters to me."

An obviously irritated Rehnquist interrupted in a very loud voice: "Let's just get on with it then!"

The judge, his ears burning, ducked his head and hurriedly returned to the script.

You don't get many moments like that in a courtroom, and the more sycophantic among the media took the opportunity to laugh a little too long and a little too loud. But it was very funny.

Less funny will be the political bloodbath if Rehnquist does step down at the end of the current term.

The chief justice's retirement would present the president with a big problem. Unless Bush selects someone who clearly favors reversing Roe vs. Wade, ending abortion rights in the United States, he will deeply anger the religious right, part of his core constituency.

However, should Bush select someone obviously out of the political mainstream to placate that constituency, at the least he runs the risk of alienating the broad middle of the electorate and energizing abortion rights groups.

Senate Democrats, already rebellious over Bush's nominees to the lower courts, would be electrified.

Somehow, I doubt if Rehnquist really cares.

Many factors have surely been weighed in that mathematically precise mind before the chief justice decided whether to retire this year or not. It's not likely that Bush's political pitfalls would be among them.

A few years ago, Rehnquist presided over the impeachment and trial of a president as matter-of-factly as if he were dealing a hand of poker. When he steps down, if he steps down, it will be because he himself is damned good and ready.

Let's just get on with it then, indeed.


Mike Kirkland is UPI's senior legal affairs correspondent and has been embedded in the Supreme Court since 1993.

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