Playing poker with a nation

The Saturday Profile: William Rehnquist, Chief Justice of the United States

THOSE WHO contend that history has a twisted sense of humour found their perfect example this week in the spectacle of William Hubbs Rehnquist being sworn in to preside as an "impartial" judge over the impeachment trial of President Clinton.

The least of it is that Rehnquist, a highly ideological conservative, was sworn to judicial impartiality by the presiding officer and oldest member of the Senate, Strom Thurmond of South Carolina, a man so far to the Right that 51 years ago he ran for President as a "Dixiecrat" in protest against the very modest moves the Democratic party (to which Thurmond then belonged) had made in the direction of conceding civil rights to black Americans.

Another irony lies in the fact that Rehnquist, as an amateur historian, published a book in 1992, Grand Inquests, about the two previous most important impeachment trials in American history: those of Chief Justice Samuel Chase in 1813, and of President Andrew Johnson in 1868. The book is being republished, and has already reached the bestseller lists, but Rehnquist has decided not to update it for fear of giving away his opinion on matters that could come up in the Clinton trial.

That has not stopped Washington journalists rushing to see if they can glean any hints from it about how Rehnquist will conduct the trial. The failure of bipartisan attempts to cut the trial process short means that Rehnquist is now bound to have considerable influence over the proceedings. For the senators, not normally short of a word or several hundred on most subjects, will be largely silenced in the impeachment trial. They will be taking part as jurors, and however much they may take part in offstage manoeuvring, in the trial itself they will be limited to submitting questions in writing through the Chief Justice.

The constitution prescribes that the President can only be found guilty on an impeachment by a two-thirds majority, that is, by 67 senators, which is 12 more than the present Republican majority of 55. Twenty-six rules have been handed down to guide the senators. But once the trial starts, they will be entering largely uncharted waters, so the Chief Justice's role will certainly be influential and could be decisive.

That is why the irony is so profound. For President Clinton is a relatively centrist Democrat, far from an extreme liberal by objective measures. But to the conservative Republicans who impeached him in the House of Representatives, and even more to the "movement conservatives", the Religious Right, the financial backers and ideological journalists who egg them on, Clinton is objectionable as a liberal.

Privately, Chief Justice Rehnquist certainly shares their opinion. He is an unashamed ideological conservative. He was sent to the Supreme Court 27 years ago as such by President Nixon, as part of a calculated plan on Nixon's part to end liberal domination of the Court. His voting and his opinions as first a justice, then chief justice, have been reliably conservative. Indeed, while his impartiality should not be impugned, on a number of occasions he has even intervened judicially in the preliminaries of the President's investigation in ways that helped to bring Clinton before the bar of impeachment.

By the end of the 1960s, the Republicans, and conservatives generally, were furious at what they saw as the activist liberal judgements of the "Warren Court" - the Supreme Court under Chief Justice Earl Warren. Those decisions included the famous declaration, in the Brown case in 1954, that racially segregated education was unconstitutional. But there were other decisions - banning prayer in schools, protecting the rights of criminal suspects against the police, endorsing affirmative action and mandating school busing in the interests of racial equality - that outraged conservatives scarcely less than Brown. President Nixon set out to destroy the liberal majority on the Supreme Court.

One of the longest-acting powers of a President lies in his ability to change the personnel, and so in the end the politics, of the Court. He can appoint justices, though they must then be confirmed by the Senate, after hearings, once fairly perfunctory, but increasingly bitter and political in recent years, in part because of the way the process was politicised by Richard Nixon. Nixon had bad luck with his first nominations, one of whom turned out to belong to an all-white country club and the other to be spectacularly mediocre (giving rise to the immortal defense that "mediocre people had a right to be represented on the Supreme Court, too). But he still had time to put three more conservatives on the Court before he resigned to forestall his own impeachment. One of them was William Rehnquist, who had been an assistant attorney-general in Nixon's own Department of Justice before Nixon appointed him to the Court in 1972.

He was, had always been and has remained an extreme conservative. One research group found that he had been consistently the most conservative justice on the Court, taking the conservative position (sometimes, admittedly, hard to define) in 85 per cent of cases.

Rehnquist grew up in Wisconsin, in the suburban, white middle-class world of Milwaukee, famous for its beer, German origins and northern European Protestant traditions. His parent were Swedish, Lutheran and of that mid- Western business conservatism that has given so much support to Ross Perot. Following High School he pursued an Ivy League education, first in poltical sciences at Stanford University and then to the traditionally liberal Harvard Law School, where he graudated top of his class. He then moved to Arizona, where they tend to resent the Federal government as if it were a colonial power, and practised law in Phoenix. There he became a friend and adviser of Senator Barry Goldwater, who ran for President as a conservative Republican candidate in 1964 and got trounced by Lyndon Johnson.

Rehnquist, even liberals agree, is unstuffy and a pleasant enough man personally. Tall and now stooped, he hikes his loafers up on the table like a regular Western fellow, and used to wear his hair long, at least by the standards of judges. He has written, though not published, a detective novel, and he is fond of Gilbert & Sullivan; he will even preside over the impeachment in a gown he designed for himself (with gold bands to look like one he saw worn by the Lord Chancellor in a production of Iolanthe). He is also a keen amateur painter and a poker player.

He is, however, an unashamedly ideological judge and, moreover, that unusual animal, a pro-government conservative. The catch is that the government he favours is the state government, as opposed to the federal government of the United States. In this he is squarely in the tradition of southern conservatives who have always defended states' rights against Washington.

Nor is his conservatism just a matter of abstract constitutional principles. As one writer put it, he invariably sides "with the prosecution in criminal cases, with business in anti-trust cases, with employers in labour cases, and with the government in [freedom of] speech cases".

Paul Martin, a student of the Supreme Court at Oxford University, points out that Rehnquist has consistently voted for extending the death penalty, most recently even to mentally retarded killers and murderers who were juveniles when they killed. (Bill Clinton, as governor of Arkansas, signed the death warrant of a mentally retarded murderer.) He has also steadily opposed abortion. But of all the positions he has taken, the one that has probably caused him most trouble was one he maintains was not his own.

A lot of the work of Supreme Court justices is done by "clerks", bright young lawyers, most of them graduates of elite law schools. In the 1950s Rehnquist, fresh out of Harvard Law School, clerked for Justice Robert Jackson, a New Dealer who was the chief US prosecutor at Nuremberg. Rehnquist wrote a memo arguing that the plaintiffs in the school desegregation cases (Brown and others associated with it) ought to fail because there was nothing unconstitutional about education that was "separate but equal": precisely the point the Warren Court rejected.

When Rehnquist was elevated by President Reagan from within the ranks of the Supreme Court judges as Chief Justice in 1986, the Democrats brought this up against him. Rehnquist insisted he was setting forth Justice Jackson's opinion, not his own. Others have maintained, plausibly, that whether or not it was Jackson's opinion (it was, after all, settled law at the time that segregation was legal), it was certainly Rehnquist's opinion at the time. The result was that the hearings held by the Senate on his appointment as chief justice, previously gentlemanly if not perfunctory, turned into a fierce ideological battle. In the end, Rehnquist was approved, but with the greatest number of votes against in history: 33 of the 98 senators voting voted against. The rough ride liberal senators gave to Nixon's solicitor-general, Robert Bork, whose nomination was withdrawn, has left a lasting scar on conservatives.

Not much has been made of it yet, but Rehnquist has not managed entirely to keep himself out of the political manoeuvring leading up to Clinton's impeachment. Originally, Janet Reno, the President's attorney-general, under a statute that has since been repealed by Congress, appointed Robert Fiske to be the independent counsel, as the prosecutor is known, to investigate the President's alleged involvement in the Whitewater land project.

Conservative Republicans in Congress, however, led by Senator Lauch Fairchild of North Carolina, wrote a letter to the Court complaining that Mr Fiske had not been tough enough, and it was Chief Justice Rehnquist who appointed the special three-man panel which chose Kenneth Starr as the independent counsel. The Washington Post has reported that the Court's rulings under Rehnquist have "worked against President Clinton and ultimately favoured independent counsel [special prosecutor] Kenneth Starr".

Rehnquist's ability as a lawyer and as a judge is unquestioned. He is a tight manager who has insisted that the justices' conferences, which once rambled on for days, are all over by lunchtime. He has also been known to cut counsels off in mid-syllable if they exceeded the time he had allotted them for argument. He has a prodigious memory for the law, and is one of the fastest writers of opinions on the Court in recent history.

It is not his professional impartiality as a judge but his instincts that are in question. He has not hidden that they are those of a committed conservative ideologue. If the two personae should come into conflict in the cut and thrust of the trial, it will not go well for the President.

Godfrey Hodgson

Life Story

Born: Milwaukee, Wisconsin,

1 October, 1924.

Origins: Swedish parents. Father a wholesale paper salesman

Married: Natalie Cornell (d 1991)

Children: James, Janet, Nancy

Religion: Lutheran

Military service: Sergeant, Army Air Corps,

1943-46

Law career: Assistant Attorney General, 1969. Supreme Court Justice 1972. Chief Justice 1986.

Passion: Gilbert and Sullivan. His gown (right) is modelled on that of the lecherous Chief Justice in Iolanthe.

Plays: Croquet and poker

On the last impeachment (1865): Its operation "was less like that of a grand jury than like that of the manager of a political candidate's campaign looking into what charges might be made against a political opponnent"