Rehnquist and his court

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 was not just respect and sympathy for an old and ailing man that stayed the critics. Rather, Rehnquist had failed to lead the Court toward a principled constitutionalism in exercising the power of judicial review. That failure followed partly from his inability or unwillingness to articulate and defend consistent legal principles, even if he did generally favor conservative outcomes.

Yet there is a limit to what a chief justice can accomplish, and the composition of the Court matters more than who is managing it. For that reason, conservatives are better off fighting for a new conservative justice than fighting for the elevation of one of the Court's present conservatives. President Bush was therefore wise to select as his new chief justice John Roberts, whose career 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. We hope he bears in mind that while Roberts could plausibly be seen as more conservative than O'Connor, he is not necessarily to the right of Rehnquist. Unless the president seeks no more than the Court's continuing in the vein of its recent jurisprudence, 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 also hope that Bush is 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 tends both 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, even if he did not reach it.

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