Rehnquist and Roberts Rabid Rancor

"The framers of our Constitution came up with two major contributions to the art of government. The first was the idea of an executive not dependent on the political support of the legislature. The second was the idea of the judiciary independent of the executive and legislative branches." William Rehnquist.

In the beginning: As the rancorous Robert's hearings close today it is worth taking a moment for a little historical, as opposed to hysterical, perspective.

When studying constitutional law, many of my students over the past 15 years have been suprised to learn about the history of the Supreme Court. Other than establishing it, Article III of the United States Constitution spells out neither the specific duties, powers, confirmation, nor organization of the Supreme Court: "[t]he judical Power of the United States, shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish."

Instead, the Constitution left it to Congress and to the Justices of the Court itself to develop the authorities and operations of the entire Judicial Branch of government. President George Washington appointed the first court of six justices, including the first Chief Justice John Jay.
Lacking any specific direction from the Constitution, the new U.S. Judiciary spent its first decade as the weakest of the three branches of government. Early federal courts failed to issue strong opinions or even take on controversial cases. The Supreme Court was not even sure if it had the power to consider the constitutionality of laws passed by Congress. This situation changed drastically in 1801 when President John Adams appointed John Marshall of Virginia to be the fourth Chief Justice. The Supreme Court, under John Marshall, defined itself with its historic 1803 decision in the case of Marbury v. Madison. In this single landmark case, the Supreme Court established its power to interpret the U.S. Constitution and to determine the constitutionality of laws passed by congress and the state legislatures. John Marshall went on to serve as Chief Justice for a record 34 years.

Over the years the number of Supreme Court Justices sitting on the bench has changed six times, before settling at nine in 1869, where it has remained as a matter of practice, not law. In its entire history, the Supreme Court has had only 16 Chief Justices and the role is an important one. The Chief Justice decides the courts calendar, which justices will review cases to determine whether a case will be heard by the court or not and then assigns who writes the majority opinion - if he is in the majority. In the politics of the court these assignments often make a great difference particularly in close cases.

Supreme Court Justices are nominated by the President and must be approved by a majority vote of the Senate. Until the 1960's there were no hearings like the current rabid fanfare. Abe Fortas had the unfortunate distinction of being the first nominee to sit through such a hearing after being nominated by Lyndon Johnson. The Senate first exercised their filibuster rights in his case resulting in Johnson having to withdraw Fortas from consideration and the nomination fell to Richard Nixon who nominated Warren Burger.

What about ideology? Presidents have always considered a candidates views, background and experience when nominating them to the court. However, there are two very important historical notes. First, historically this was assumed and the most important factor in consideration was the qualifications of a candidate to serve. The first challenge to a President came with Franklin Roosevelt. However, that was not because of the ideology of the candidates but because Roosevelt wanted to increase the number of Justices sitting on the court. It was not until Abe Fortas that the Senate determined they had to investigate a candidate through hearings and even then the challenge to Fortas was to his character in advising the president in secret sessions and financial dealings in accepting large amounts of cash for differing side projects - not ideology.

Second, history and every major study performed proves there is no strong correlation between a judicial nominees past and how they will rule when serving a life-time appointment on the Supreme Court. One of the most comprehensive studies reported in Political Research Quarterly. 53(3): 557-573 by Jeffrey A. Segal, Richard J. Timpone, and Robert M. Howard concludes: "Presidents appear to be reasonably successful in their appointments in the short run, but justices on average appear to deviate over time away from the presidents who appointed them."

Consider just a few recent examples. Hugo Black was believed to be extremely conservative given that he had been a member of the Klu Klux Klan and defended them in a famous murder trial of a priest (imagine how well that would go over in Senate confirmation hearings!). Yet it was Black who created the most liberal doctrine of U.S. Supreme Court history known as the "Incorporation Doctrine" where somehow the word "liberty" in the 14th amendment was meant to incorporate most of the first ten amendments to apply those amendments to the states. This idea lies at the heart of most of the religious liberty cases, privacy cases, and other civil liberties cases. Or how about Earl Warren a conservative California attorney general who was responsible for herding thousands of Japanese families into internment camps during the war. Once again I doubt that would have played well in a Senate confirmation hearing. Yet he went on to lead one of the most pro-active Supreme Courts in deciding all the leading civil rights cases. Finally, consider the first justice to survive the modern senate confirmation hearings - Warren Burger. He was a strong conservative Republican appointed by Nixon, because Nixon had read some of his strong writings. Yet Burger signed on with the majority in deciding Roe v. Wade.

Rehnquist Rememberance. William Rehnquist would undoubtedly be dismayed to see the hearings his former clerk and pall bearer has endured. Being a strong strict constructionist and historian, Rehnquist would have seen his independent role and not have publicly commented but he would have strongly disagreed with the assumption made by many of the Senators that they had the Constitutional right and duty to know and compel a judicial candidate to disclose his position on matters likely to come before the court. I always appreciated Rehnquist strong intellect and willingness to challenge assumptions. As he wrote, "It is impossible to build sound constitutional doctrine upon a mistaken understanding of constitutional history."

I will miss William Rehnquist and the strong role he played in standing for constitutional truth. His former clerk has big shoes to fill and I hope he fills them well, but as his former boss would strongly affirm, whether Roberts represents Rehnquist conservative ideology or not he is highly qualified to serve on our nation's highest court and that should be the most important consideration of the Senate.