William Rehnquist was Richard Nixon’s chief legal strategist when Nixon appointed him to the Supreme Court in 1971. He was the favorite of the radical right when Ronald Reagan promoted him to Chief Justice in 1986. As Chief Justice, Rehnquist handpicked the three extremely conservative judges who appointed Ken Starr as independent counsel. How convenient that, if there is a Senate trial, Rehnquist will preside over the fiercely partisan effort by the Republican Party’s right wing to remove Bill Clinton from office. Of course, it could be worse. When Vice President Aaron Burr presided over the impeachment trial of Supreme Court Justice Samuel Chase in 1805, he had just been indicted for murder for killing Alexander Hamilton. And when Chief Justice Salmon P. Chase presided over the impeachment trial of President Andrew Johnson in 1868, the notoriously ambitious Chase was busy scheming to succeed Johnson as President.
The Chief Justice hasn’t murdered anybody (the 500 legal executions Rehnquist helped make possible since 1976 don’t count), and he doesn’t appear to want Bill Clinton’s job. He’s even written an informative book, Grand Inquests, on the two major Senate impeachment trials in the nation’s history, chronicling in numbing detail the acquittals of both Samuel Chase and Andrew Johnson. The Chase trial ended in acquittal when President Thomas Jefferson’s efforts fell four votes short of the constitutionally required two-thirds of the Senate. The Johnson trial failed to remove the President by a single vote.
Rehnquist applauds the Senate for refusing to remove Chase and Johnson from office. Chase’s acquittal, argues the Chief Justice, helped establish the principle of judicial independence. In the 194 years since Chase’s acquittal, no Supreme Court Justice has faced a Senate impeachment trial. Johnson’s narrow acquittal, argues Grand Inquests, preserved the separation of powers, preventing the emergence of Congressional supremacy by requiring an impeachment trial to be a judicial inquiry, not a political vote of confidence. In the ensuing 130 years, no American President faced an impeachment trial in the Senate–until William Jefferson Clinton.
Rehnquist has special praise for the seven Republican senators who broke party ranks and voted to acquit Andrew Johnson. But does that mean Bill Clinton would have an unexpected friend in court presiding over the Republican-dominated Senate? Not likely. As I read the tea leaves in Rehnquist’s book, and in his past, I believe that the Chief Justice will choose to play a relatively low-key role in any Senate trial, assuring fair and orderly procedures but leaving virtually every important legal issue to be decided by the 100 senators themselves by the chaotic process of majority vote. Despite my deep disagreement with the Chief Justice on many issues, I believe that such a passive role would be unfortunate because, unless Chief Justice Rehnquist chooses to assert himself, the Clinton impeachment trial, barring any move to forestall it, will drift into legal wonderland. In the end, of course, after the Senate mud-wrestlers have grunted their way through the lengthy script, the verdict is likely to be the same as in the Chase and Johnson impeachment trials–acquittal by less than a two-thirds vote. Twelve Democratic senators are probably not going to join with the fifty-five Republicans to annul the 1996 presidential elections. But months and months of vitriol could tie the Senate into knots and further embitter an already poisonous political atmosphere.