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And Then There Were Two


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Chief Justice William Rehnquist’s death brings to an end a long and praiseworthy career of public service. When he came to the Supreme Court, there was no Federalist Society. Antonin Scalia was not a justice; Clarence Thomas had not even been graduated from law school. The closest thing to another conservative on the Court was Byron White, a Kennedy appointee. It was a lonely time to insist on constraints on the power of the federal judiciary. (Rehnquist was the only Republican justice to dissent from Roe v. Wade.) Rehnquist never succumbed to the prevailing fashion. If any conservative reformation of the federal judiciary happens now, he will be counted among its originators.

Yet there is a reason the chief justice had gotten encomia from liberals in his last years, and for years before that had not drawn the criticism that Justices Scalia and Thomas regularly receive. It is not just respect and sympathy for an old and ailing man that stayed the critics. A few months ago, liberal legal commentator Jeffrey Rosen wrote in The Atlantic Monthly that Rehnquist has been a very “impressive” and “successful” chief justice because of his lack of ideology, and implied that Bush should find someone similar.

We cannot agree. Rosen counted Rehnquist as a success by defining success too narrowly, as a matter of preserving the Court’s comity and reputation. Rehnquist was much less successful in getting the Court to embrace a principled constitutionalism in exercising the power of judicial review. The Rehnquist Court has seen modest improvements on church and state, on criminal procedure, and, more debatably, on federalism. In general, however, it has not achieved the return to constitutional principle that conservatives had hoped for.

This failure was only partly his fault. His effectiveness in steering the Court toward constitutional sanity, especially when it comes to respecting the constitutional limits of its own power, was damaged by his inability or unwillingness to articulate and defend consistent legal principles–an inability that flows from his not really holding such principles, as opposed to generally favoring conservative results.

But there is also a limit to what any chief justice can do. The lineup of justices on the Court ultimately matters more than who is managing it. If Justice Sandra Day O’Connor had been chief justice over the last 30 years and Rehnquist an associate justice, it is hard to believe that the Court’s jurisprudence would look markedly different.

It follows that conservatives should care far more about the identity of any new justice than about who will be chief. To elevate Justice Scalia or Thomas to chief would not compensate for the addition of another justice in the mold of Anthony Kennedy or O’Connor. Conservative resources would be better spent fighting for a new conservative justice than fighting for the elevation of one of the current ones.

President Bush was therefore wise to select John Roberts to be the next chief justice rather than to elevate someone already on the Supreme Court. Roberts’s ample professional qualifications are well known; and what evidence we have seen since his nomination gives us more confidence than not that he will be a conservative jurist.

Attention will now turn to the question of who will replace Roberts as Bush’s nominee to replace Justice O’Connor. In particular, attention will turn to the question of whether he should choose a female, black, or Hispanic nominee. Whatever he decides, he should look for a nominee with a demonstrated respect for the text of the Constitution as it was understood by the ratifying public. The would-be justice should also respect the Court’s precedents–but be willing to overrule them when they are seriously out of line with the constitutional text. That willingness is especially important in an era when the Court has taken on so many responsibilities and faces few effective checks. The Court’s errors have become more important, and if the Court will not correct them itself it is unlikely anyone else will.

We hope that in choosing his nominee, the president is also as mindful of the drawbacks of the “stealth strategy” as of its advantages. The development of an extensive and sophisticated network of conservative lawyers, centered in Washington, D.C., may have made it less likely that a Republican nominee without a paper trail will turn out to be a liberal. But the risks are greater than for a nominee whose views are a matter of record. Adopting the stealth strategy also tells every member of that network to keep his head down as his career advances–a signal that could end up hurting conservatives in years to come. Finally, the strategy both tends to prevent the open argument for a conservative constitutionalism and, indeed, to associate that cause with a kind of shiftiness.

The president promised to appoint “strict constructionists” in the Scalia/Thomas mold. There are millions of voters whose support for the Republican party is practically contingent on the party’s commitment to at least allow a democratic vote on the priorities of social conservatives. We have no objection, in theory, if Bush appoints a nominee whose views about government policy are liberal; but we hope and expect that he will keep his promise about appointing legal conservatives.

If President Bush does keep that promise, we will be closer to the goal of a Supreme Court restored to its proper constitutional function–a goal that Chief Justice Rehnquist pointed toward without being able to reach.



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