I posted the below on my blog: www.davidcorn.com. Please visit that site for other items on Hurricane Katrina and other matters.
I confess: I have a hard time saying William Rehnquist, rest in peace. Supreme Court Chief Justice Rehnquist, who died on Saturday night, spent much of his adult life trying to restrict the rights of American citizens and to empower further the already-powerful. He rose to prominence as a right-wing attorney who decried the Earl Warren court for being a hotbed of judicial activism (left-wing judicial activism, as he saw it). He then became, as a Supreme Court justice, a judicial activist of the right-wing sort, overturning laws made by Congress (that protected women against domestic violence, banned guns near school property, and prohibited discrimination against disabled workers) and steering the justices into Florida’s vote-counting mess in 2000 (an act that only coincidentally–right?–led to George W. Bush’s presidency). In that case–Bush v. Gore–Rehnquist, for some reason or another, placed aside his much heralded belief in state sovereignty, which led him on other occasions to grouse about limits on the abilities of states to execute criminals. When it came to states frying prisoners, he advocated a hands-off approach. In vote-counting, he was all for intervention.
But let’s be clear: in recent years there has been no other Supreme Curt justice who had a personal history so loaded with racism–or, to be kinder than is warranted, tremendous insensitivity to racial discrimination–as did William Rehnquist. As a law clerk for Justice Robert Jackson in the early 1950s–when the Court was considering the historic Brown v. Board of Education school desegregation case–Rehnquist wrote a memo defending the infamous 1896 decision, Plessy v. Ferguson, which established the separate-but-equal doctrine. Rehnquist noted, “That decision was right and should be reaffirmed.” In other words, he favored continuing discrimination and racial segregation. During his 1971 confirmation hearings, after he was nominated to serve as an associate justice on the Supreme Court, he said that memo merely reflected Jackson’s view not his own. But few historians have bought that shaky explanation.
It’s not hard to conclude that Rehnquist was on the wrong side of history and then lied about it–especially given actions he took later. In 1964, Rehnquist testified against a proposed ordinance in Phoenix that would ban racial discrimination in public housing. As The Washington Post notes in today’s stories on his death, Rehnquist wrote at the time, “It is, I believe, impossible to justify the sacrifice of even a portion of our historic individual liberty for a purpose such as this.” In other words, people are not truly free if they are not free to discriminate. In his 1971 hearings, Rehnquist repudiated that stance. But did he really mean it? Twelve years later, he was the only justice to say that Bob Jones University–that hotbed of racial discrimination and religious bigotry–had a legal right to keep African-Americans off its campus.
“He Lived for The Law”–that’s how AOL headlined the story on Rehnquist’s death. But it’s not that Rehnquist had a blind spot on race. He was an active proponent of discrimination. Yet this fellow–without truly making amends–became chief justice of the highest court of the land. Only in America.
What will George W. Bush do now? Elevate Antonin Scalia to chief justice? Appoint someone who’s not already on the court to the job? Will he wait until after the hearings on John Roberts to name his pick? That would be good politics. It would be foolish to add any other factor to the Roberts confirmation process, which, from a White House perspective, is going rather well. In the aftermath of Hurricane Katrina, might Bush look to Edith Clement, a conservative federal appellate judge from New Orleans? Or how about Janice Rogers Brown, an African-American woman and sharecropper’s daughter who is now a far-right California state judge (who seems to hate the federal government)? After all the recent talk about poor black people being shafted in New Orleans by the US government, Bush might enjoy standing in the Oval Office with Brown and talking about her personal story. [UPDATE: I know. Bush has tapped Roberts to replace Rehnquist as Supreme Court jefe. Some Dems are asking Bush to announce his choice for the Sandra Day O’Connor vacancy before they have to vote on Roberts, But it’s unlikely the White House will yield to this request. The smart political move on Bush’s part is to get Roberts confirmed and then pick a new fight.]
No doubt, Bush will make a selection that’s better for him than the country–and he will announce his choice at a time and in a manner that best serves his administration. In the meantime, as Rehnquist’s impact on America is considered, it ought not be forgotten–particularly at a time when we see how the poor of New Orleans have been neglected–that Rehnquist was at times all too willing to forget about the rights of those less fortunate than he.