Monday, September 12, 2005

I set out on the sloop John B.

On Monday the Senate Judiciary Commitee considers Mr. Roberts. Well, Henry Fonda he ain't, nor is he Ensign Pulver.

Here's some discussion of his predecessor, Rehnquist:

Miami Herald
In the most important legal issue of the modern era, racial equality, Rehnquist was consistently on the wrong side. As a law clerk to Justice Robert Jackson while the court considered Brown vs. Board of Education, Rehnquist counseled against overturning the ''separate but equal'' doctrine of Plessy vs. Ferguson and fumed about his colleagues' ``pathological search for discrimination.''

Rehnquist's views as a justice were of a piece. Over 33 years, he compiled a virtually unbroken record of trying to narrow the scope of laws protecting the civil and voting rights of minorities, including watering down the enforcement of Brown -- the landmark decision he opposed at its inception.

In other key areas, Rehnquist's jurisprudence was deeply flawed. In a flagship achievement, Rehnquist led the court to curtail citizens' ability to sue states and their officers for violations of federal or state laws. But his approach suffers from the same fundamental problem he once identified in Roe vs. Wade: Whatever the doctrine's merits, it has little if any grounding in the Constitution, its purported source. Rehnquist also spearheaded the court's drive to remove judicial checks on the death penalty even as DNA evidence provided irrefutable proof that the whole system of capital punishment was rife with error.

Psychotic Right Wing Tech Central Station:
You could see it in his opinions, especially after he became Chief. Rehnquist opinions have a certain casualness about both reasoning and citation -- he was famous for misdescribing past cases to make them say what he wanted. He was also well-known by law clerks for cutting out most of the reasoning in their opinion drafts. The classic Rehnquist opinion would state the facts (sparely), state the issue, and state the result, with as little explanation as possible. With one exception: Rehnquist was an artist at laying the groundwork for some future legal development he wanted but for which he didn't yet have the votes. When reasoning was just reasoning, Rehnquist didn't much care about it. When the choice of legal arguments offered a shot at some future bottom line, he cared a lot. Reasons were mere tools. Results were the point of the exercise.

And he believed in seizing opportunities. I clerked for Lewis Powell during his next-to-last year on the Court. That year, Rehnquist was assigned the majority opinion in what looked like a not-very-important criminal case. His law clerk wrote an opinion draft; Rehnquist pared it down a little, then circulated it. Quickly, six of the other eight Justices -- including William Brennan and Thurgood Marshall, the Court's leading liberals -- joined. Rehnquist was appalled: if he was getting more than five votes, that meant he had left money on the table, that he could have pushed the law farther in his preferred direction without losing his majority.

Above all, he was the bottom-line Justice. Faced with a choice between theoretical consistency and a favorable outcome, he would pick the outcome every time. No judge's decisions fit any theory perfectly, but Rehnquist was clearly at one end of the spectrum in this regard. Lawyers call it "result oriented," and it's usually a pejorative. Rehnquist might have considered it a compliment. He seemed to think that law should be result-oriented: the Brennans of the world had their preferred results and he had his; the two sides should duke it out. Theoretical consistency, in his view, was overvalued. Rehnquist understood that the law is filled with compromise and conflicting principles, that without those inconsistencies the machinery can't run. And he believed in making the machinery run -- even the most liberal Justices rejoiced at how smoothly the Court functioned after he took over the Chief's chair from Warren Burger. Just as meetings in George Bush's White House begin when they're supposed to and end when they're supposed to.

As Atrios says, heh-indeedy.

National Catholic Reporter:
Even liberal readers may wonder whether the chapters are too one-sided. There are no voices that are conservative or even moderate. The unrelenting thesis is that the Rehnquist court has come out on the wrong side of issues like affirmative action, women’s rights, the power of Congress to impose obligations on the states and the rights of those accused of crime.

Herman Schwartz, the editor of this collection of valuable essays, is a highly regarded liberal professor at American University Law School in Washington. He arranged for a version of these papers to be published in a special issue of The Nation magazine.

The most prominent decision in this collection is the 5-4 ruling of the Supreme Court in December 2000 that gave the presidency to George W. Bush over Al Gore. Jurists and others will be pondering for generations to come whether that ruling comports with the generally conservative leanings of the Rehnquist court. The authors in this anthology seem to think that it does. For them it is another example of judicial activism -- in open contradiction to the battle cry of Republicans over the last 30 years that judicial activism is wrong.

Well, there's so much more, but now we face the question: Is Rehnquist/Roberts the enemy, or is it O'Conner, whose replacement is yet to be named.

Partisan politics du jour.

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