Rehnquist’s Glass House


Washington— It seems only fitting that the final act of the Clinton Impeachment Saga should highlight the role of a judge who garbs himself in a designer black robe adorned with gold-striped sleeves in emulation of Iolanthe‘s Lord Chancellor, a Gilbert and Sullivan character whose predilection for Lewinsky-age waywards led him to sire a half-human, half-fairy love child. But as the nation has come to reacquaint itself with Chief Justice William Rehnquist in recent weeks, no one has worried about any ribald wraiths lurking under his official vestments. A devoted family man and widower, Rehnquist has only been a subject of speculation vis-à-vis procedural matters: namely, how he’ll preside over a contentious chamber of legislator-jurists.

However, in a town where hypocrisy is coin of the realm, one doesn’t have to listen too hard for the sound of jingling change. Though few remember it, the matter of veracity is one that has dogged Mr. Justice Rehnquist in the past— so much so that during his confirmation hearings for chief justice in 1986, 75 legal scholars wrote the Senate Judiciary Committee expressing grave concerns about a “disturbing thread” that emerged under questioning regarding Rehnquist’s “integrity and ethical standards.” (Sound familiar?) Too, the subject of the alleged perjuries— especially when taken in conjunction with Rehnquist’s particular brand of jurisprudence— are enough to give one pause as to just how impartial the chief justice might be in his current role.

When Rehnquist’s confirmation hearings began in the summer of 1986, Senator Strom Thurmond— then chairman of the Judiciary Committee— predicted Rehnquist would be confirmed “without any trouble.” In fact, the hearings were among the most disputatious a court nominee has faced, owing in part to allegations that Rehnquist, while an Arizona Republican Party functionary in the 1960s, had harassed minority voters at the polls. Originally this red flag went up at Rehnquist’s 1971 hearings to vet his suitability for an associate seat on the judiciary’s paramount bench, but Rehnquist quickly dispensed with the question at the time; acknowledging the controversial nature of the state GOP’s 1958­1964 poll-watching project, he explained that while he was a part of the effort, he never actually challenged anyone’s right to vote. Despite sworn accounts to the contrary by two eyewitnesses, the 1971 Senate found Rehnquist’s explanation adequate and confirmed him.

In 1986, however, an additional four witnesses appeared before the committee, all to dispute Rehnquist’s account. Perhaps the most interesting testimony came from James Brosnahan, a former assistant U.S. attorney in Phoenix. Recalling Election Day of 1962, Brosnahan testified that, following complaints of intimidation and harassment, he and an FBI agent arrived at a south Phoenix polling station, where they encountered Rehnquist.

“I have read the testimony and letter supplied by Justice Designate William Rehnquist to this Committee in 1971. [His statement that] in none of these years did I personally engage in challenging the qualifications of any voters . . . does not comport with my recollection of the events I witnessed in 1962 when Mr. Rehnquist did serve as challenger.” (While Brosnahan testified that minority voters had pointed out Rehnquist as their harasser, he also testified that he himself had not seen Rehnquist doing anything untoward.)

Also briefly revisited at the hearing was Rehnquist’s 1971 explanation of a 1952 memo written when he was a clerk to Supreme Court Justice Robert Jackson. Entitled “A Random Thought on the Segregation Cases,” the memo— written in the first person and bearing Rehnquist’s initials— held that any attempt at court-ordered desegregation would be unconstitutional: “I realize that it is an unpopular and unhumanitarian position, for which I have been excoriated by liberal colleagues, but I think Plessy v. Ferguson was right and should be reaffirmed . . .” As he had in 1971, Rehnquist contended that, though written by him, the memo was reflective of Jackson’s views as articulated in a conversation, and that the “I” was Jackson. Jackson, he claimed, had requested he write the memo.

By 1986, however, author Richard Kluger’s definitive account of the Brown v. Board of Education case, Simple Justice, had been published; the book included a scathing five-page footnote that systematically picked apart the veracity of Rehnquist’s account. Noting Kluger’s scholarship, Senator Edward Kennedy said he found it “impossible” to believe Jackson said, let alone believed, anything to the effect of Rehnquist’s memo.

No independent counsel was appointed to investigate the apparent under-oath discrepancies; unlike Clinton, who Rehnquist would later rule could not use executive privilege in his defense, Rehnquist was protected from a more damaging inquiry when Ronald Reagan invoked executive privilege for numerous documents requested by the Judiciary Committee. On September 17, 1986, Rehnquist was confirmed, but with one-third of the Senate voting against him— a record opposition that only Clarence Thomas would surpass five years later.

Since Clinton’s impeachment, much has been made of the fact that, despite his being an activist right-wing judge, Rehnquist’s devotion to rule of law and procedural fairness will result in an impartial proceeding. Given Rehnquist’s spiritual fellow-travelership with some of Clinton’s enemies, however, one has to wonder. The principles of property rights and states’ rights has driven Rehnquist for years; in the service of those principles, he zealously championed segregation. As both Salon and the London Observer have reported, an enthusiastic participant in the American Spectator‘s “Arkansas Project” was ex­Arkansas Supreme Court Justice James Johnson, an arch-conservative segregationist whose farm is adorned with a sign that says “White Haven,” and who was told— to his face— by Bill Clinton that “you make me ashamed to come from Arkansas.”

That Ken Starr showed no reservation about using convenient but flawed material provided by Johnson in a segment of his investigation makes one wonder whether Rehnquist might apply a similar evidentiary standard to Clinton’s trial. Then too, there is the unsettling feeling that Rehnquist has at least tacitly orchestrated the impeachment. By naming intensely conservative judge David Sentelle as chair of the U.S. Court of Appeals Special Division in 1994, Rehnquist insured that doggedly partisan independent counsels would be appointed to investigate the Clinton administration. Sentelle frequently lunches with Jesse Helms, and until his recent defeat, Lauch Faircloth, who served as a conduit between Johnson’s Arkansas Project cronies and Starr, whom Sentelle appointed.

All this suggests that Rehnquist has little standing to preside over a perjury trial. But in Washington, the truth is far less persuasive than the company you keep.

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