July 15, 2005, 8:35 a.m.
Delay Is Good
One spot on the Supreme Court right now is better than two.

By Douglas W. Kmiec

The chief justice has not retired — and says he has no intention to anytime soon. The decision is most honorable — indeed, given his illness, self-less, if not near heroic.

I am certain the chief's statement is much to the relief of the president. It should be of relief to us all, since it lessens what was becoming all too apparent — that every factor in the nomination process was going to use multiple vacancies to politically horse-trade to the ultimate disadvantage of the integrity of the Court. With a single vacancy, it is now possible for president and Senate alike to assess the individual merits of an appointment, without succumbing to the powerful pressures of interest groups which would have sought to balance the "ticket," at the cost of merit.

When William Rehnquist sat down to pen a history of the Supreme Court in the late 1980s, he reflected on how Alexander Hamilton viewed the Court as the "least dangerous branch." Given the overriding dominance of the Court in modern times, Hamilton seems the least prophetic Founding Father. Rehnquist is far more realistic.

Rehnquist's association with the Court dates back to 1952, when this young Milwaukeean by way of Stanford Law arrived to take a coveted clerkship with New Dealer Robert H. Jackson. Law-clerk Rehnquist records that his California car had no heater — optional equipment in those days — but as fortune would have it, he would supply his own jurisprudential heat.

The chief justice is a soft-spoken man, almost diffident. Conversing with him is like an easy conversation with a backyard neighbor. But the chief's core values are anything but indifferent.

Central among these was an appreciation for constitutional structure. Before being promoted to the center seat, Rehnquist as an associate justice had convinced a slender majority that traditional state functions should not be subject to federal regulation. This revival of federalism lasted exactly nine years, when Harry Blackmun changed his mind and left the states to fend for themselves, like any other political lobbyist, in the halls of Congress. This infuriated Rehnquist and he vowed that one day he would return the states to their proper place.

He did. If there is a core element of the Rehnquist history, it is that we are a democratic republic that is healthier when "we the people" can experiment with different answers to hard questions. In this, Rehnquist isn't pro-life or pro-abortion; he isn't for or against "gay rights" — he is simply for letting you and me in our several states make up our own mind — without the Court getting in the way.

In 1997, when a Washington state law prohibiting assisted suicide was argued to be contrary to an implicit constitutional liberty, Rehnquist — who for 19 years has often presided over a 5-4 Court — wrote for a unanimous court that there was no such liberty. Suicide and assisted suicide were longstanding crimes. It is not up to the Court to make up new liberties and if any is to be implied, it must be carefully described to illustrate how it is deeply embedded in this nation's history and tradition.

That is as good a definition of judicial restraint as any, and in the near term, President Bush should be relieved not to have to find more than one replacement who will continue to observe that precept as faithfully.

The chief justice has vowed to carry on — "as long as his health permits." May that be as long as the likely Democratic filibuster he averted.

— Douglas W. Kmiec is chair and professor of constitutional law at Pepperdine University. He is a former constitutional legal counsel to Presidents Reagan and Bush.

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