Wednesday, September 07, 2005


Goodbye, Lone Ranger

William H. Rehnquist was the most conservative justice on the Supreme Court from his appointment in 1972 until Antonin Scalia's appointment in 1986. Supposedly, his occasional but high-profile "lone dissents" in the 1970s earned him the nickname "the Lone Ranger" -- among whom, outside his circle of law clerks, I'm not completely sure, but I read it in The Brethren.

I came of age as a college and law student, an adult, a lawyer and a law professor during William H. Rehnquist's tenure on the Court, and I suppose in a way I'll miss him -- in sort of the same way that one misses Darth Vader after his exit. He's a nemisis that we're used to, and people tend to like what they're used to.

But let's not get confused about what sort of justice Rehnquist was. The Burger Court of the 1970s was fundamentally a Republican court, not as conservative as the Court has been since the mid-1980s, but conservative, and Rehnquist represented its far right wing. With a couple of notable exceptions -- such as his 2000 majority opinion in U.S. v. Dickerson, in which he voted to uphold the exclusionary rule -- he really didn't moderate his views.

If he seems like a more moderate conservative today, it's only because the Court and the country have generally shifted to the right on many issues. There's also a sort of emotional moderation -- a moderation of feelings of strong antipathy -- that can be caused by nemesis-familiarity, or the sympathy one feels for an old man, particularly one who is sick.

Rehnquist was a conservative, politically opportunistic lawyer who followed the administration's marching orders and could not reasonably said to have disappointed the two Republican presidents who nominated him -- Nixon, who named him to the Court, and Reagan, who named him chief.

This is all to say that it's hard for me to get worked up about John Roberts, who is now the nominee to replace Rehnquist. From the point of view of liberals, Roberts may be no better than Rehnquist, but it says here that he will be no worse.

That doesn't mean that the Senate Democrats should simply vote to confirm him. The appointment of a Supreme Court justice is not merely about technical job qualifications (which Roberts undoubtedly has) or "judicial temperament," but it is a highly political process. The constitution's requirement of Senate confirmation was, in my view, intended by the framers to ensure that Supreme court confirmations be tempered by politics.

Bush's nomination of Roberts reflects politics that Senate Democrats are wholly justified in rejecting. Bush was re-elected by the narrowest margin of any incumbent since 1900, after having lost the popular vote in 2000. If he had a statesmanlike bone in his body, he would be looking for a known moderate consensus pick for the Supreme Court. Roberts is not that; his nomination shows Bush playing to his right-wing constituency as much as he can get away with. That alone justifies a "no" vote by a Democratic Senator. Senatorial consensus should not form around someone who is not a consensus nominee.

Another thoughtful post. Thanks.
Well said (as always).
Thank you for another wonderful post, you wonderous stallion.
Excellent post. Thanks.
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