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The Senator & The Chief Justice
Mrs. Clinton vs. the majesty of American democracy.


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It is unusual for a sitting politician’s campaign biography to reveal disdain for American traditions, politically disastrous judgment, and emotional immaturity, but in recounting a single incident Living History does all three. Senator Hillary Clinton discloses that she attempted to exclude the chief justice of the United States from administering the oath to President Clinton in 1996. As justification, the former First Lady provides a catalogue of perceived malefactions: They include a memo the chief justice wrote as a Supreme Court clerk 50 years ago doubting the legality of requiring an end to segregated schools and his dissent in the Bob Jones case in which he found that the IRS did not have statutory authority to deny charitable deductions to racially discriminatory colleges. (Rehnquist made clear that Congress could order the IRS to deny such tax deductions).

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The silliest complaint of Mrs. Clinton’s was that Rehnquist did not “hide his friendship with extreme conservatives” who were political enemies of the Clintons. Why anyone (at least anyone who has experienced true friendship) would think it a virtue to “hide one’s friendships” is left unexplained. But all of these complaints are cover for what really irked Mrs. Clinton. As she notes elsewhere in the book, Chief Justice Rehnquist had appointed the judges to the special division which had appointed Kenneth Starr. At the time Judge Starr, it should be remembered, had a reputation for scrupulous fairness among Democrats as well as Republicans. Nevertheless, Rehnquist was guilty by association at two degrees of separation from an independent counsel Mrs. Clinton had grown to hate. Incredibly, the former First Lady then suggested that one of the two most junior justices, Ruth Bader Ginsburg or Stephen Breyer, swear in the president. They, of course, were the only Democrats on the Court and the only justices appointed by President Clinton. Her husband demurred and the chief justice administered the oath.

AMERICAN HISTORY — EVEN BEFORE BILL AND HILLARY
Mrs. Clinton’s effort was an affront to the bipartisanship that has marked transitions of presidential power since the beginning of the republic. These traditions embody the essential need for the inauguration to restore the unity of American government after the inevitable divisions of a presidential campaign. While John Adams was the first to be sworn in by the chief justice, it was Thomas Jefferson who inaugurated the symbolism of the act by writing to Chief Justice John Marshall to ask him to administer the oath. Jefferson and Marshall were bitter personal rivals at the time when the general acrimony among Federalists and Democratic Republicans was at its height, given the Federalist machinations to deny Jefferson the presidency by getting the House to elect his running mate, Aaron Burr. Marshall, moreover, was not only the chief justice but also the secretary of state in the outgoing Federalist administration of John Adams. Precisely because of their deep divisions, Jefferson recognized that the administration of the oath by Marshall would symbolize the continuity of American government during the change of parties — a continuity preserved by the rule of law over which the chief justice presides.

This tradition has continued even when presidents have disagreed vehemently with the chief justices who swore them in. President Lincoln took his oath from Democrat Roger Taney whose recent decisions in Dred Scott Lincoln had campaigned against and which was on the verge of precipitating the Civil War. President Franklin Roosevelt took the oath from Republican Charles Evans Hughes who had presided over several recent decision invalidating the president’s New Deal reforms that, however badly designed, were intended to lift the nation out the Depression. Against these examples, Mrs. Clinton’s differences with the current chief justice seem pretty paltry indeed.

COULD HAVE BEEN
But Mrs. Clinton was not content to suggest that the chief justice be excluded. She wanted a Democratic justice appointed by Clinton himself to administer the oath instead. That second suggestion would, of course, have created its own symbolism — of division and partisan triumphalism.

As well as being destructive, Mrs. Clinton’s ideas were terrible politics, both inside and outside the Beltway. The Republican Congress would not have taken kindly to her treatment of the chief justice. More importantly, in light of our traditions, this act would have been immediately seen for what it would have been — a graceless and petty acting out of grudges that mars the majesty of America democracy. It would have begun President Clinton’s second term almost as badly as his pardons ended it.

Finally, Clinton’s suggestion shows that she was emotionally immature. Refusing to permit the chief justice to administer the oath is the equivalent of a child’s determination to keep her enemy out of the sandbox because she feels she has been treated unfairly. Any democratic politician needs to be able to set aside his personal feelings to deal with opponents in a spirit of conciliation at moments of national need.

The incident concerning the chief justice and the inauguration raises doubts that Senator Clinton will ever become president: Such demonstrated lack of political judgment and emotional immaturity will present serious obstacles in the course of a national campaign. It should make us even more concerned about entrusting the presidency to a politician who has a self-righteous contempt for the important American traditions that protect our experiment in self-government.

— John O. McGinnis is a professor at Northwestern Law School.



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