Reagan's Mr. Right

By Evan Thomas

When William Rehnquist was appointed to the Supreme Court by Richard Nixon in 1971, he believed that the court was "heeling" to the left and felt obliged, as he later put it, "to lean the other way." He was not much of a counterweight. The high court at the time was still dominated by liberals from the Earl Warren era, and Rehnquist often found himself in lonely dissent against the Justices' rulings upholding the constitutional rights of blacks, women and the poor. Indeed, Rehnquist was on the short end of so many 8-to-1 votes that his law clerks presented him with a small Lone Ranger doll, which still sits on the mantel in his chambers.

But William Rehnquist is the Lone Ranger no longer. To his brethren he will henceforth be known as "the chief." Last week President Reagan announced that Rehnquist will succeed Warren Burger, 78, who will step down after 17 years as the highest jurist in the land when the court's term ends next month. On the first Monday in October, when the nine Justices emerge from behind the red curtain to take the high bench, William Hubbs Rehnquist will become the 16th Chief Justice of the United States.

To fill Rehnquist's seat as an Associate Justice, the President picked Antonin Scalia, the son of an Italian immigrant, who has served since 1982 as a Reagan appointee on the U.S. Court of Appeals for the District of Columbia. Brilliant, engaging, tenacious and solidly conservative, Scalia (pronounced Skuh-lee-uh) will be a valuable ally for the new Chief Justice (who is already his crony in a floating monthly poker game in Washington) as well as a force on the court in his own right.

"This is the end of an era and the beginning of a new one," exulted Dan Popeo, general counsel of the conservative Washington Legal Foundation. "Judicial restraint is going to be fashionable." Liberals were downcast. The nominations of Rehnquist and Scalia "signal an effort by the President to impose his own narrow ideological views onto the Supreme Court," protested Julius Chambers, director of the NAACP Legal Defense and Educational Fund.

Reagan's triple play will not, of course, transform the court overnight. By losing Burger and gaining Scalia, Reagan is in a narrow sense simply replacing one conservative with another. Nevertheless, Rehnquist, a shrewd intellect and popular figure on the court, promises to be a much more forceful leader than the plodding, standoffish Burger. "The Rehnquist-Scalia duo is infinitely more dynamic than the conservative wing was with Burger at the helm," says Constitutional Scholar Laurence Tribe of Harvard Law School. "I would be extremely surprised if over the next several years the effect is not to push the court to the right considerably."

The Burger Court was a disappointment to conservatives. The six Justices appointed by three Republican Presidents from 1969 to 1981 failed to undo the extraordinary record of judicial activism compiled by the liberal Warren Court of the '60s.* Most galling to the right, the Burger Court gave women a constitutional right to abortion in 1973. Divided and unpredictable, the court was Burger's in name only. The most controversial cases were decided, often with confusing split opinions, by a shifting center of five or six Justices (see box).

By their formidable intellect and persuasiveness as well as their personal charm, Rehnquist and Scalia stand at least a chance of making the court more cohesive and coherent. Their judicial

opinions will be more sprightly and readable than the turgid fare churned out by most of their brethren.

Reagan has made it clear that he wants to remake the federal judiciary in his own conservative image, not just on the high court but in the lower federal courts as well. Judicial appointments can be a President's most enduring legacy. Federal judges, appointed for life and removable only for "treason, bribery, or other high crimes and misdemeanors," often serve long after a President's term expires. Future vacancies on the high court may offer Reagan a back-door means of achieving the New Right social agenda-- including permitting prayer in schools and banning abortion--that elected politicians in Congress have so far rebuffed. Time, certainly, is on the conservatives' side: the leading liberals on the court, William Brennan and Thurgood Marshall, are respectively 80 and 77 years old. Rehnquist is 61 and Scalia 50.

The high-court shuffle was an unusually well-kept secret by Washington standards. Even within the marble temple of the Supreme Court, the Justices were not tipped off. Only 15 minutes before the President went on national television last Tuesday, the Chief Justice's clerks fanned out to other chambers bearing copies of Burger's resignation letter. The Justices and their staffs were then invited to the court's paneled conference room, where a pair of TVs had been set up. Only when the President appeared on the air with Rehnquist and Scalia standing beside him did the brethren learn the identity of their new chief and new colleague.

The selection process had begun quietly three weeks earlier. In late May, Burger asked for an appointment with the President, ostensibly to discuss the 1987 celebration of the 200th anniversary of the Constitution. Reagan's aides were reluctant; as chairman of the Commission on the bicentennial of the U.S. Constitution, Burger was constantly complaining that the celebration was short of funds and understaffed. Still, Burger was invited down to the White House. Only after he had chatted with Reagan for 20 minutes about the bicentennial did Burger drop the bombshell that he was resigning, a year earlier than most expected.

Burger, who was just recovering from a persistent case of the flu, explained that his chores on behalf of the anniversary celebration were so time consuming that he could not fulfill them and still do justice to the court. According to his aides, the President was somewhat taken aback that Burger wanted to give up the court to keep the celebration. But he did not try to talk the Chief Justice out of his decision. At least one reason was that Burger's timing was politically opportune. The Republicans stand a real chance of losing control of the Senate this fall, and a Democratic leadership might bitterly resist a Reagan-appointed Chief Justice.

White House Chief of Staff Donald Regan was determined to keep the choice of Burger's successor under tight control. He was afraid that leaks would set judges and politicians scrambling to lobby Reagan for their favorite choices. Instead, Regan wanted to present Reagan with a very few carefully screened names.

After the Burger meeting, the President instructed Regan that all candidates to succeed the chief should be sitting Justices or federal judges with well- established judicial track records. The Reaganauts did not want to be rudely surprised. They were mindful that Dwight Eisenhower's choice of Chief Justice, Earl Warren, had seemed like a moderate Republican as Governor of & California and promptly turned out to be an innovative liberal as a jurist. A short list of half a dozen contenders was drawn up. It did not include any of Reagan's old political buddies, such as Nevada Senator Paul Laxalt and former Interior Secretary William Clark. The President's instructions had the effect of eliminating Attorney General Edwin Meese from consideration. Meese later insisted that he was not interested in joining the court, but his friends think he will be available for any future openings.

At first a tight little screening committee of Regan, Meese and White House Counsel Peter Wallison considered recommending Justice Sandra Day O'Connor as the new chief. She was Reagan's sole high-court appointee, and to name a woman as the nation's top judge would be a political masterstroke. But O'Connor, now in her fifth year on the court, was deemed too inexperienced. Reagan's aides may have also been disturbed because she seemed to show mild symptoms of the Earl Warren syndrome, lately developing a disconcerting streak of independence. In the last year or so, for instance, she voted for expanded libel protection for the press and against prayer in schools, contrary to Administration dogma.

There were no such ideological qualms about Rehnquist. On June 12 he was summoned to the White House for an interview with the President. Reagan got on well with the affable Justice, but the President was worried about Rehnquist's health. Five years ago Rehnquist was hospitalized to overcome an addiction to a powerful painkiller he had been taking for his chronically bad back. At the time, court employees noticed that Rehnquist's speech was slurred and that he seemed to be having mental lapses. In his interview with Reagan, however, Rehnquist volunteered that he had long since kicked his addiction and could offer a clean bill of health from his doctors. Somewhat to his aides' surprise, the President offered Rehnquist the job as Chief Justice then and there. Rehnquist did not hesitate: "It would be an honor," he replied.

The contest to fill Rehnquist's seat quickly narrowed to Scalia and a fellow judge on the appeals court in Washington, Robert Bork. A respected former Yale Law School professor, Bork had been lured from a lucrative law- firm job in Washington to the federal bench with strong hints from the Administration that he would be first in line for the next available spot on the court. But Bork carries some political baggage: as acting Attorney General ! in 1973, he obeyed Nixon's order to fire Watergate Special Prosecutor Archibald Cox; Elliot Richardson had resigned as Attorney General rather than fire Cox. Scalia offered Reagan the chance to place the first Italian American on the high court. He is nine years younger than Bork, an important consideration for a President who wants to leave a lasting mark on the judiciary. The energetic Scalia was perceived by White House aides as more of a true believer than Bork. Indeed, a few of Scalia's colleagues on the Court of Appeals suspect that he wrote an inordinate number of strongly worded dissenting and concurring opinions on the conservative side of cases simply to advertise that he was 100% in accord with Reagan's views.

Scalia was given first crack at an interview with Reagan, and again the President wasted no time. After trading a few anecdotes with the congenial jurist about old judges they had known, Reagan offered, and Scalia accepted. The tidiness of the selection process pleased the President's advisers; Reagan was spared from ever having to say no.

The Senate is expected to confirm both Rehnquist and Scalia by late summer. Still, both will undergo sharp and searching questioning by liberal Senators. Their nominations raise basic questions about the role of Congress in choosing Supreme Court Justices. Is the Senate's job merely to say whether a President's choice has the intellectual qualifications and experience to sit on the federal bench? If so, Scalia and Rehnquist are above reproach. Both men, declared Senate Majority Leader Robert Dole last week, have "the experience, the background, the integrity, the intelligence and the right stuff."

But some scholars argue that Senators are justified in opposing court appointments on ideological grounds as well. When the Founding Fathers were framing the Constitution, they considered giving the Senate the power to appoint judges. Instead, a compromise was struck: the President would make the choices with the "advice and consent" of the Senate. Throughout the 19th century, this was taken to mean that the Senate could balk on ideological grounds, and indeed, the Senate refused to confirm some 20 Supreme Court nominations. But in the past 50 years, the only serious challenges (such as the rejection of Nixon Appointees Clement Haynsworth and G. Harrold Carswell) have occurred when political objections were linked to questions of fitness and competence. Some liberals feel that it is time for the Senate to reassert < its political prerogatives. In that case, Scalia and Rehnquist make inviting targets. "My own view is that the Senate's role is to be a partner in the appointment process and examine the views of the nominees, at least when the President is so self-consciously trying to shape the court," asserts Yale Law School Professor Paul Gewirtz. Democrat Alan Cranston of California, who voted against Rehnquist's confirmation as a Justice in 1971, last week asked, "Can a man who has an extreme right-wing ideology manage the court in a fair and balanced way?"

The man Reagan chose to remake the high court shares many of his roots and values. Like Reagan, Rehnquist left his boyhood home in the Midwest to head for the Far West, where he embraced the frontier verities of rugged individualism and a respect for law-and-order. The son of a paper salesman, Rehnquist grew up in the quiet Milwaukee suburb of Shorewood. After serving three years in the Army Air Corps during World War II, he used the G.I. Bill to go to Stanford. Graduating first in his class from Stanford Law (a classmate was Sandra Day O'Connor), he was selected to clerk on the Supreme Court for Justice Robert Jackson.

As a law clerk in 1952, Rehnquist wrote a memo for Justice Jackson stating that "separate but equal" public education for blacks was "right and should be reaffirmed." Questioned about this at his confirmation hearings in 1971, Rehnquist insisted that he was expressing the Justice's views, not his own. But University of Chicago Law School Professor Dennis Hutchinson, who is writing a biography of Jackson, calls Rehnquist's explanation "absurd." Jackson always instructed his clerks to express their own views, not his, says Hutchinson. Last year Rehnquist stated that he now believes that the Supreme Court's 1954 landmark decision Brown vs. Board of Education outlawing school segregation is correct, but added, "I think there was a perfectly reasonable argument the other way."

Following his clerkship, Rehnquist set up a law practice in Phoenix. There he became a Goldwater conservative who opposed an integration plan for Phoenix public schools in 1967. Brought back to Washington to the Nixon Justice Department by another Phoenix lawyer, Deputy Attorney General Richard Kleindienst, Rehnquist was enlisted in the Administration's battle against student radicals, whom Rehnquist described in a 1969 speech as "the new barbarians." He helped devise legal grounds to round up and detain antiwar ) protesters during the 1971 May Day demonstrations. Later that year Nixon rewarded Rehnquist for his efforts by putting him on the high court.

In a revealing interview last year with John Jenkins for the New York Times Magazine, Rehnquist described his political philosophy. "I'm a strong believer in pluralism: don't concentrate all the power in one place. You don't want all the power in the Government as opposed to the people. You don't want all the power in the Federal Government as opposed to the states."

As a Justice, he has been a consistent defender of states' rights against federal intrusion. At the same time, however, he has strongly resisted the efforts of other Justices to protect individual rights by broadly interpreting the Constitution. He is a staunch opponent of the controversial "exclusionary rule," under which illegally seized evidence is thrown out of court. A consistent proponent of the death penalty, he has railed against drawn-out legal appeals that delay executions.

Rehnquist was one of two dissenters (the other: Byron White) from Roe vs. Wade, the court's 1973 decision creating a constitutional right to abortion, and he has repeatedly dissented from court decisions banning prayer in schools. Court decisions upholding affirmative action have regularly drawn his scornful dissents. "There is perhaps no device more destructive to the notion of equality than the . . . quota," Rehnquist wrote in United Steelworkers and Kaiser Aluminum vs. Weber in 1979. He adamantly opposes court-ordered busing to remedy school segregation. The Constitution, he wrote in a dissent from a 1979 decision upholding busing in Columbus, does not require local school boards to "follow a policy of integration uber alles."

Rehnquist holds himself out as an apostle of judicial restraint. Federal judges, he asserts, should not impose their personal views on the law or stray beyond the intent of the framers by reading broad meaning into the Constitution. Yet judicial restraint has another meaning: judges are also supposed to respect stare decisis, the established precedent handed down by past judges. Rehnquist has been less respectful of Supreme Court precedent, especially the decisions of the liberal Warren Court. His critics sometimes accuse him of disingenuously twisting history to fit his own views. "Don't forget, Rehnquist is a radical," says Columbia Law School Professor Vincent Blasi. "Nobody since the 1930s has been so niggardly in interpreting the Bill of Rights, so blatant in simply ignoring years and years of precedent." Rehnquist retorts that such attacks come from liberal academics and that "on occasion, they write somewhat disingenuously about me."

The Justice is a lively and facile writer whose literate prose stands out on a court undistinguished by the eloquence of its opinions. In one dissent he borrowed from Gilbert and Sullivan to twit his colleagues for arrogating too much power to the federal courts: "The law is the true embodiment/ Of everything that's excellent/ It has no kind of fault or flaw/ And I, my Lords, embody the law."

Unlike some of his colleagues who agonize over each opinion and stagger under the court's case load, Rehnquist is known for quickness and efficiency. On most days he leaves the court at 3 p.m. to go swimming. He finds time for stamp collecting and oil painting (indeed, he skipped the President's State of the Union speech last February to go to his painting class in Arlington, Va.). He once even tried his hand at writing a novel about the intrigues of a federal appeals court in the Southwest (it was rejected by several publishers). At times Rehnquist has appeared slightly bored with the insular routine of the high court. Two years ago, to "refresh" himself, he sat as a judge on a two-day jury trial in federal district court in Richmond, a highly unusual move for a sitting Justice.

Witty and relaxed, Rehnquist gets on well with the other Justices and their staffs. Clerks from other chambers sometimes invite him out to a local pub for beer and burgers, and he invites his former clerks to his house in Arlington to challenge them at croquet. A rumpled dresser, he prefers Wallabees and sweaters to wing tips and pinstripes.

Rehnquist's easy manner and informality stand in stark contrast to his predecessor as Chief Justice. Burger could be courtly, but mainly he was pompous and aloof. There is little doubt which Justice is more popular with his brethren.

Personal charm and amiability are hardly trivial considerations for a Justice who wants to influence the court. The Chief Justice is merely first among equals on a court that Justice Powell once described as "nine one-man law firms." To sway his sometimes fiercely independent colleagues, a chief must be both intellectually forceful and collegial.

Burger, by almost all accounts, was seldom either. In part this was because he was distracted. Burger liked to remind reporters that he was Chief Justice of the U.S., not of just the Supreme Court, and more than any other chief he worked to improve the somewhat rickety administration of the federal courts. His great ambition, which he never realized, was to create a "super court" of appeals to siphon off some of the burgeoning case load of the Supreme Court.

The Chief Justice has only one real institutional prerogative. When he is in the majority, he can assign the task of writing the opinion. If he is in the minority, then the most senior Justice in the majority assigns the opinion. The opinion-assigning power is important, particularly when the court is narrowly divided, because the Justice who writes the court's opinion can set the terms of the debate. Burger repeatedly irked his colleagues by changing his vote to remain in the majority, and by rewarding his friends with choice assignments and punishing his foes with dreary ones. "Rehnquist is too intellectually honest to do this," says a former Brennan clerk. For Rehnquist the real question is whether he can be flexible enough to win over less dogmatic conservatives.

As a Justice, Rehnquist usually refused to budge from his perch on the far right edge of the court. "By and large he is consistent," says Law Professor Herman Schwartz of American University. "That's why I don't think he should be chief. I wonder about the choice of a man consistently on the fringes." But Columbia's Blasi contends, "Rehnquist is an excellent court infighter--certainly better than Burger and maybe even better than Earl Warren. He's an intensely political person. Some people see him sitting out there in his own world with his principles, but I think he really likes to win."

To forge majorities, Rehnquist will have to reach into the court's shifting, fluid middle. Although she has grown more independent of late, Justice O'Connor usually votes with her old Stanford Law School classmate. Justice Byron White, a Kennedy appointee, can often be counted on as a conservative vote, especially on criminal-rights cases. A careful balancer, Justice Lewis Powell is a pragmatic statesman who tries to find a middle way for the court on controversial cases. It was Powell, for instance, whose opinion striking down explicit quotas but permitting race to be a "factor" in university admissions achieved the court's Solomonic compromise in the famed 1978 affirmativeaction case Regents of the University of California vs. Bakke. Justice John Paul Stevens is a thoroughly unpredictable maverick, and Justice Harry Blackmun, once derided as Burger's "Minnesota Twin," is now often allied with the court's liberal duo, Brennan and Marshall.

If Rehnquist is looking for a model as consensus maker, he can find one in Brennan. Like Rehnquist, Brennan is popular with his colleagues. But unlike Rehnquist, Brennan has often swallowed his ideological scruples to pick up the votes of more moderate colleagues. His ability to preserve the legacy of the Warren Court on a bench well stocked with G.O.P. presidential appointees is testimony to his persuasiveness and collegiality.

Some court watchers think they see a recent willingness in Rehnquist to be more accommodating. This spring he joined the court's majority in Wygant vs. Jackson Board of Education to strike down racial quotas in laying off schoolteachers, even though the language of the opinion included a guarded endorsement of affirmative action.

Last week Rehnquist was the surprising author of a high-court decision recognizing that sexual harassment in the workplace is a violation of the civil rights laws. Rehnquist tried to strike a balance in the case, which involved a woman who said she had been harassed by sexual advances by her boss at a Washington bank. Writing for a unanimous majority, Rehnquist ruled that businesses could be held liable for sexual harassment but that they could defend themselves with such evidence as an employee's "provocative" dress or conduct.

Slow though it may be in coming, a tilt to the right by the Rehnquist Court may emerge in some critical areas. A thumbnail preview:

Abortion. Two weeks ago, in Thornburgh vs. American College of Obstetricians, the court reaffirmed its 1973 abortion decision, Roe vs. Wade, but the vote was a slim 5 to 4. Burger, who originally sided with the majority in Roe, dissented and indicated that the time had come to "review" the controversial 1973 ruling. It was not entirely clear whether Burger would vote to throw out Roe or, more likely, just shade it at the margins to uphold some state laws that make it more difficult for women to obtain abortions. The same uncertainty surrounds Justice O'Connor, who also dissented in Thornburgh but did not call for the outright reversal of Roe. Scalia, a strong Catholic, is believed to be a surer vote to overturn Roe and thereby return the decision on whether or not to permit abortions to the state legislatures.

Race. Burger has a mixed record on racial-discrimination cases. He has voted both for and against affirmative action and busing, depending on the circumstances. Significantly, however, he wrote the majority opinion in Fullilove vs. Klutznick, a 1979 case explicitly upholding the use of quotas to set aside 10% of federal contracts for minority-owned businesses under a public-works act passed by Congress. Supreme Court Expert Bruce Fein of the American Enterprise Institute suggests that Scalia would not "cotton to" such a decision and predicts a "move to a more color-blind jurisprudence." In a 1979 article in the Washington University Law Quarterly, Scalia bluntly stated his views: "I am, in short, opposed to racial affirmative action for reasons of both principle and practicality. Sex-based affirmative action presents somewhat different constitutional issues, but it seems to me an equally poor idea."

Scalia would make it much harder for blacks to win a discrimination case. Burger was the author of Griggs vs. Duke Power Co., a 1971 decision holding that employment tests that have the effect of barring blacks are unconstitutional. Scalia, by contrast, has argued that blacks must show direct evidence that the employer was motivated by racial bias against them.

Free Speech. Although the Burger Court has often been accused by editorial writers of an antipress bias, the Rehnquist Court may make the pundits positively nostalgic. Burger wrote a number of pro-press decisions during his tenure. In the 1980 case of Richmond Newspapers Inc. vs. Virginia, for instance, Burger held that under the First Amendment the press and the public have the right to attend most criminal trials. Rehnquist dissented, as he usually does in cases protecting press freedom.

As an appeals judge, Scalia has been almost gratuitously antipress. He dissented from an opinion by his rival for the high court, Judge Bork, that threw out a suit by Bertell Ollman, a New York University professor who had been vilified as a Marxist by Columnists Rowland Evans and Robert Novak. Bork held that the column was merely opinion and thus protected speech; Scalia argued that it was "a coolly crafted libel." In his 100-page dissent, Scalia wondered why columnists, "even with full knowledge of the falsity or recklessness of what they say, should be able to destroy private reputations at will." Describing Scalia as "the worst enemy of free speech in America today," New York Times Columnist William Safire implied that he seemed to be running for the Supreme Court by writing press-bashing opinions, though Safire noted that at least Scalia's animus against the press was sincere.

Religion. Burger could be found on both sides of the separation between church and state. In 1984 he wrote the decision permitting Pawtucket, R.I., to erect a creche as part of its Christmas display but struck down a Connecticut law giving workers the right to a day off on their Sabbath. Scalia is expected to agree with Rehnquist's view that there is no "wall" between church and state.

In some areas, Burger and Scalia are close. Burger has been a foe of elaborate procedural safeguards for the criminally accused, and so has Scalia. But in many areas of the law, the effect of last week's appointments is simply unknowable. There is no doubt, however, that Reagan is hoping to provide Rehnquist with reinforcements. "The selection of Rehnquist is a selection for the future," contends Sheldon Goldman, professor of political science at the University of Massachusetts at Amherst. "The Reagan Administration is counting on being able to make another one or two appointments before the President's term ends. When they do that, they're going to have their court."

Justices Brennan and Marshall are determined not to give Reagan that opportunity. "They will have to be carried out," says a former Brennan clerk, who adds that both of the old liberals are in reasonably good health. Powell, 78, and Blackmun, 77, are said to be a bit weary, yet neither has given any indication that he is ready to retire. Some court watchers say the elderly Justices are afraid the next Reagan appointee will have Scalia's ideological bent without his judicial skills and acumen. Though A.E.I.'s Fein contends that the Justices should be reassured that the White House has so far picked jurists of quality, Harvard's Tribe argues the opposite. "More likely," he says, "they feel that having made a nomination of such distinction, the President will think he has a free ride" to appoint a crony like Meese or Senator Laxalt. The choices made by Reagan, or his successor after 1988, will be immensely important, not just to the court but to the country. For the Rehnquist Court appears poised at the sort of historic divide that occurs only once every few decades.

Mr. Dooley's old saw is that the Supreme Court follows the election returns, and indeed most courts have been reluctant to get too far out of line % with the national mood. In its groping but at times statesmanlike way, the Burger Court tried to balance disparate demands, to ride the confusing currents of its time. Yet once in a great while, the Supreme Court does more than merely reflect the national consensus; it helps shape it. In 1954, when the court handed down Brown vs. Board of Education, many Americans still accepted racial segregation. Today, because the Supreme Court ruled that separate was inherently unequal, integration is far more the norm. By serving as guardian of the victims of society, the Warren Court became a kind of conscience to the nation.

Presidents come and go regularly, but there have been only 15 Chief Justices in the past 200 years. Some have been nonentities, many mere caretakers. But a few--most notably John Marshall, Charles Evans Hughes and Earl Warren--have played a vanguard role in determining what justice and equality mean in an evolving democratic society. For better or worse, Justice Rehnquist has the vision and the sureness of purpose to redefine the Constitution radically. The question is whether, given his powers of persuasion and collegial style, he will be able, with the aid of his new associate Scalia, to win the struggle for the soul of the court.

FOOTNOTE: * In addition to Rehnquist, Nixon appointed Burger in 1969, Harry Blackmun in 1970 and Lewis Powell in 1971; Gerald Ford appointed John Paul Stevens in 1975; and Reagan appointed Sandra Day O'Connor in 1981.

With reporting by David Beckwith and Anne Constable/Washington