When the chips were down for Republican leaders –
from George H.W. Bush on the Iran-Contra scandal to George W. Bush in
Election 2000 – Rehnquist worked behind the scenes with other right-wing
judges to make the federal courts the GOP’s last line of defense. In
doing so, these jurists made a mockery of their sworn duty to enforce
the law impartially and to protect the Constitution.
Much of this history of Rehnquist’s partisanship is
being forgotten amid this week’s eulogies about a respected Washington
figure who supposedly mellowed in his later years. But the reality is
that Rehnquist always remained the Republican partisan that he was in
his early days in Arizona politics.
In the 1960s, Rehnquist opposed
desegregation in Phoenix and worked on
Republican “ballot security,” a program allegedly designed to intimidate
African-American and other minority voters.
According to a Senate
summary of the opposition to Rehnquist's 1986 nomination to be chief
justice, Rehnquist “publicly opposed a Phoenix public accommodations
ordinance, and he publicly challenged a plan to end school segregation
in Phoenix, stating that ‘we are no more dedicated to an integrated
society than a segregated society.’”
The Senate summary added
that “in the early 1960s, he [Rehnquist] led a Republican Party ballot
security program designed to disenfranchise minority voters. The [Senate
Judiciary] Committee has received sworn testimony from numerous credible
witnesses that, as part of his involvement in the ballot security
program, Mr. Rehnquist personally challenged the eligibility of minority
voters. Justice Rehnquist has categorically denied this. But none of
these witnesses had anything to gain by misrepresenting the truth.”
Nevertheless, with Rehnquist’s confirmation to head
the high court and Ronald Reagan’s appointment of more and more
conservative judges, the stage was being set for an extraordinary
politicization of the federal judiciary.
By the early 1990s, a tipping point was reached as
a new generation of right-wing judges exercised their new dominance to
protect Reagan’s legacy – and George H.W. Bush’s reelection campaign –
from the fallout of the Iran-Contra scandal.
Iran-Contra special prosecutor Lawrence Walsh –
himself a lifelong Republican – was stunned by the partisanship of these
jurists. In his memoir, Firewall, Walsh described the Reagan-Bush
loyalists on the U.S. Court of Appeals in Washington as “a powerful band
of Republican appointees [who] waited like the strategic reserves of an
Rehnquist himself played a key role in both
sabotaging the Iran-Contra investigation and setting the stage for the
relentless legal assault on Bill Clinton and his administration. In a
little-noticed maneuver in 1992, Rehnquist used his power as chief
justice to overhaul the three-judge panel that picked and supervised
The job of leading that panel had been held by
senior Appeals Court Judge George MacKinnon, an old-time Republican who
had selected and supported Walsh. But after Walsh broke through the
Iran-Contra cover-up in 1991 and brought obstruction-of-justice cases
against former Defense Secretary Caspar Weinberger and several senior
CIA officials, Rehnquist acted.
Walsh told me that he learned about Rehnquist’s
maneuver in a phone call from MacKinnon, who said Rehnquist was
replacing him with David Sentelle, a junior appeals court judge known as
a committed Republican partisan.
By ousting MacKinnon, Rehnquist eliminated one of
Walsh’s strongest defenders. By putting Sentelle in charge, the chief
justice picked a judge who had already voted to overturn Walsh’s
hard-fought convictions of Reagan’s White House aide Oliver North and
National Security Adviser John Poindexter.
Defying the Law
Rehnquist made this change despite language in the
1978 Ethics in Government Act aimed at preventing partisanship by
stipulating that in picking members of the three-judge panel “priority
shall be given to senior circuit judges and retired judges.”
That provision had always
been followed – until 1992 when Rehnquist brushed aside the language and
reached down for an active junior judge, Sentelle.
Beyond Sentelle’s lack of
“senior” status, he was known as one of the most conservative partisans
on the federal bench. A protégé of North Carolina Sen. Jesse Helms and a
former Reagan convention delegate, Sentelle had even named his daughter,
Reagan, after his political idol.
Sentelle also continued
denouncing liberals after his appointment to the federal bench. In one
article published in the Harvard Journal of Law and Public Policy
in winter 1991, Sentelle accused “leftist heretics” of wishing to turn
the United States into “a collectivist, egalitarian, materialistic,
race-conscious, hyper-secular, and socially permissive state.”
With MacKinnon’s ouster, Walsh recognized that his
Iran-Contra investigation was growing increasingly isolated, even as it
closed in on the long-protected roles of Ronald Reagan and George H.W.
Bush. Under mounting pressure – and after Bush pardoned six Iran-Contra
defendants on Christmas Eve 1992 – Walsh reluctantly shut his office
But Sentelle remained as Rehnquist’s appointee to
run the three-judge panel. Sentelle used that authority to
pick Republicans for sensitive special
prosecutor investigations, whether the target was a Republican or a
Sentelle’s first special
prosecutor was named when a scandal arose in fall 1992 over the Bush
administration’s illegal search of Bill Clinton’s passport records –
seeking derogatory material that could be used to destroy Clinton’s
Sentelle’s panel handed
this politically sensitive probe to Republican stalwart Joseph diGenova,
who ran an investigation that turned up many facts pointing to
Republican guilt but still concluded that George H.W. Bush and his
operatives were innocent. [For details of this case, see Robert
Secrecy & Privilege: Rise of the Bush Dynasty from Watergate to Iraq.]
Once Clinton took office,
Sentelle’s panel began selecting hard-line conservatives to investigate
the Democrats. Republican Donald Smaltz was named to investigate
Agriculture Secretary Mike Espy. David Barrett, who had headed Lawyers
for Reagan, was picked to investigate Housing Secretary Henry Cisneros.
Most notably, George H.W.
Bush’s Solicitor General Kenneth Starr was chosen to investigate
President Clinton, first over the Whitewater case and later over a
variety of other allegations.
In Senate testimony in
1999, Sentelle explained that he consciously selected political
adversaries to conduct these investigations. Sentelle said he looked for
Republicans “who had been active on the other side of the political
fence” to investigate Clinton and his administration.
Beyond the view of many
legal experts that prosecutors should be as impartial as possible –
neither friends nor foes of the person under investigation – Sentelle
had applied his selection strategy differently in 1992 when he picked
Republican diGenova to investigate alleged wrongdoing by the first Bush
Hunting the President
Regardless of how one
views the merits of the “Clinton scandals,” there’s no question that the
time-consuming investigations took a toll on the Democrats.
The investigations – into
relatively trivial matters such as the Clintons’ Whitewater business
deals, the Travel Office firings and the mistaken delivery of FBI files
to the White House – weakened Clinton politically and created the
climate for his impeachment in 1998 over his misleading testimony about
a sexual affair with White House employee Monica Lewinsky.
Before MacKinnon’s death
in 1995, he told his family that if he had remained in charge of the
special prosecutor panel he would not have appointed Starr. A son, James
D. MacKinnon, said Judge MacKinnon objected to Starr’s appointment in
1994 because of the appearance of partisanship arising from Starr’s
senior position in the prior administration.
Judge MacKinnon also
expressed concern about Starr’s frequent public appearances. The judge
felt these “were wholly inappropriate for an independent counsel,” James
MacKinnon said, adding that: “My father always felt that independent
counsels and judges should be extraordinarily discreet with any public
comments, and be as anonymous as possible and simply do their work.”
The hidden hand behind
Starr and the other special prosecutors who bedeviled the Clinton
administration was U.S. Supreme Court Chief Justice Rehnquist, who had
picked Sentelle who, in turn, had picked the special prosecutors.
Crossover to Gore
The eight-year assault on
Clinton carried over into Election 2000 as George W. Bush’s campaign
endeavored to link Vice President Al Gore to the “Clinton sleaze.”
According to polls, the Republicans succeeded in spreading this taint to
Still, on Nov. 7, 2000,
the American voters cast more than a half million more ballots for Gore
than for Bush. Gore also led in the Electoral College.
Bush only could win by
claiming the 25 electoral votes of Florida, where he was clinging to an
official lead of only a few hundred votes. Limited recounts, however,
were eating into that margin.
The situation looked grim
for Bush on Dec. 8 when the Florida Supreme Court ordered a statewide
review of ballots that had been rejected by counting machines. The
recounting began on the morning of Dec. 9. Immediately, the canvassers
began finding scores of legitimate votes that the machines had missed.
Bush’s lawyers raced to
the U.S. Appeals Court in Atlanta to stop the count. Though dominated by
conservatives, that court found no grounds to intervene.
A frantic Bush then
turned to the U.S. Supreme Court in Washington. There, in the late
afternoon, the court took the unprecedented step of stopping the
counting of votes cast by American citizens.
Justice Antonin Scalia
made clear that the purpose of the court’s action was to prevent Bush
from falling behind in the tally and thus raising questions about his
legitimacy should the Supreme Court later declare him the winner.
That outcome would “cast
a cloud” over the “legitimacy” of an eventual Bush presidency, explained
Scalia. “Count first, and rule upon the legality afterwards, is not a
recipe for producing election results that have the public acceptance
democratic stability requires,” Scalia wrote.
Trusting the Law
Nevertheless, on Dec. 11,
Gore and his lawyers voiced confidence that the rule of law would
prevail, that the U.S. Supreme Court would rise above any partisan
concerns and insist that the votes be counted and that the will of the
voters be respected.
The Gore team went before
Rehnquist’s court apparently still not cognizant of the reality that
whatever they argued, the five conservative justices were determined to
make Bush the next President.
The evidence is now clear
that Rehnquist and his four Republican colleagues decided on the outcome
of their legal ruling in Bush v. Gore before they settled on their legal
logic. Indeed, the logic flipped from the start of their deliberations
to the end, but their pro-Bush verdict remained steadfast.
disclosed this inside story in an article about the strains that the
Bush v. Gore ruling created within the court. Though the article was
sympathetic to the pro-Bush justices, it disclosed an important fact:
that the five were planning to rule for Bush after oral arguments on
Dec. 11, 2000. The court even sent out for Chinese food for the clerks,
so the work could be completed that night.
At that point, the legal
rationale for stopping the Florida recount was to have been that the
Florida Supreme Court had made “new law” when it referenced the state
constitution in an initial recount decision – rather than simply
interpreting state statutes.
Even though this argument
was highly technical, the rationale at least conformed with conservative
principles which are supposedly hostile to judicial “activism.” But the
Florida Supreme Court threw a wrench into the plan.
On the evening of Dec.
11, the state court submitted a revised ruling that deleted the passing
reference to the state constitution. The revised ruling based its
reasoning entirely on state statutes, which permitted recounts in close
This modified state
ruling opened a split among the five conservatives. Justices Sandra Day
O’Connor and William Kennedy no longer felt they could agree with the
“new law” rationale for striking down the recount, though Justices
Rehnquist, Scalia and Clarence Thomas were prepared to stick with the
old thinking even though its foundation had been removed, USA Today
O’Connor and Kennedy then
veered off in a very different direction. Through the day of Dec. 12,
they worked on an opinion arguing that the Florida Supreme Court had
failed to set consistent standards for the recount and that the
disparate county-by-county standards constituted a violation of the
“equal protection” rules of the 14th Amendment.
The logic of this
argument was quite thin and Kennedy reportedly had trouble committing it
to writing. To anyone who had followed the Florida election, it was
clear that varied standards already had been applied throughout the
Wealthier precincts had
benefited from optical voting machines that were simple to use and
eliminated nearly all errors, while poorer precincts with many
African-Americans and retired Jews were stuck with outmoded punch-card
systems with far higher error rates. Some counties had conducted manual
recounts, too, and those totals were part of the tallies giving Bush a
The statewide recount was
designed to reduce these disparities and thus bring the results closer
to equality. Applying the “equal protection” provision, as planned by
O’Connor and Kennedy, turned the 14th Amendment on its head,
guaranteeing less equality than would have occurred by letting the
recounts go forward.
Indeed, if one were to
follow the “logic” of the O’Connor-Kennedy position, the only “fair”
conclusion would have been to throw out Florida’s presidential election
in total. After all, the U.S. Supreme Court was effectively judging
Florida’s disparate standards to be unconstitutional.
That, however, would have
left Gore with a majority of the remaining electoral votes.
The Big Switch
Perhaps even more
startling than the stretched logic of the O’Connor-Kennedy faction was
the readiness of Rehnquist, Scalia and Thomas to sign on to a ruling
that was almost completely at odds with their own legal rationale for
blocking the recount.
On the night of Dec. 11,
that trio was ready to bar the recount because the Florida Supreme Court
had created “new law.” On Dec. 12, the same three justices voted to
block the recount because the Florida Supreme Court had not created “new
law” – by establishing precise statewide recount standards. [USA
Today, Jan. 22, 2001]
The five conservatives
had devised their own Catch-22. If the Florida Supreme Court set clearer
standards, that would be struck down as creating “new law.” If the state
court didn’t set clearer standards, that would be struck down as
violating the “equal protection” principle. Heads Bush wins; tails Gore
After the court’s Dec. 12
ruling and Gore's concession the next day, Justice Thomas told a group
of high school students that partisan considerations played “zero” part
in the court's decisions. Later, asked whether Thomas's assessment was
accurate, Rehnquist answered, “Absolutely.”
In later comments about
the court’s role in the case, Rehnquist seemed unfazed by the
inconsistency of the logic. His overriding rationale seemed to be that
he viewed Bush’s election as good for the country – whether most voters
thought so or not.
In a speech on Jan. 7,
2001, the chief justice said sometimes the U.S. Supreme Court needed to
intervene in politics to extricate the nation from a crisis. Rehnquist’s
remarks were made in the context of the Hayes-Tilden race in 1876, when
another popular vote loser, Rutherford B. Hayes, was awarded the
presidency after justices participated in a special election commission.
“The political processes
of the country had worked, admittedly in a rather unusual way, to avoid
a serious crisis,” Rehnquist said.
Rehnquist’s remarks as shedding light on his thinking during the Bush v.
Gore case as well.
“He’s making a rather
clear statement of what he thought the primary job of our governmental
process was,” said Michael Les Benedict, a history professor at Ohio
State University. “That was to make sure the conflict is resolved
peacefully, with no violence.” [Washington
Post, Jan. 19, 2001]
But where were the
threats of violence in the 2000 election? Gore had reined in his
supporters, urging them to avoid confrontations and to trust in the
“rule of law.” The only violence had come from the Bush side, when the
Bush campaign flew protesters from Washington to Miami to put pressure
on local election boards.
On Nov. 22, 2000, as the
Miami-Dade canvassing board was preparing to examine ballots, a
well-dressed mob of Republican operatives charged the office, roughed up
some Democrats and pounded on the walls. The canvassing board promptly
reversed itself and decided to forego the recount.
The next night, the
Bush-Cheney campaign feted the rioters at a hotel party in Fort
Lauderdale. Starring at the event was crooner Wayne Newton singing
“Danke Schoen,” but the highlight for the operatives was a thank-you
call from George W. Bush and his running mate, Dick Cheney, both of whom
joked about the Miami-Dade incident, the Wall Street Journal reported.
The Journal noted that
“behind the rowdy rallies in South Florida this past weekend was a
well-organized effort by Republican operatives to entice supporters to
South Florida,” with House Majority Whip Tom DeLay's Capitol Hill office
taking charge of the recruitment. [WSJ, Nov. 27, 2000. For more details,
see Consortiumnews.com’s “Bush’s
Conspiracy to Riot.”]
In other less violent
ways, Bush-Cheney operatives signaled that they would not accept an
unfavorable vote total in Florida.
If Gore pulled ahead, the
Republican-controlled state legislature was preparing to void the
results. In Washington, the Republican congressional leadership also was
threatening to force a constitutional crisis if Gore prevailed in
If one takes Rehnquist’s
“good-for-the-country” rationale seriously, that means the U.S. Supreme
Court was ready to award the presidency to the side most willing to use
violence and other anti-democratic means to overturn the will of the
Ignoring the Voters
Gore won the national
popular vote by more than a half million votes and
to a later unofficial recount of Florida's ballots
– would have
narrowly carried the state if all legally cast ballots were counted.
[See Consortiumnews.com's "So
Bush Did Steal the White House."]
Yet instead of ruling
that the vote tabulations alone should decide the victor
– a position
the U.S. Supreme Court could have taken – the Rehnquist court intervened
to hand the presidency to Bush.
“good-for-the-country” rationale held that Gore and his supporters were
less likely to disrupt the political process or to resort to violence if
they came out on the losing side. In other words, Bush got what he
wanted because he was ready to provoke a crisis if the court told him to
accept the will of the voters.
But other evidence
suggests that Rehnquist’s motive wasn’t as noble as his suggestion that
he was doing what was best for the country.
In looking back at his
history, including the Arizona “ballot security” and his selection of
Sentelle to pick special prosecutors, a strong argument could be made
that Rehnquist’s real motive was neither evenhanded enforcement of the
law nor the nation’s best interests – but simply what was good for the
Republican Party and the conservative movement.
When Rehnquist swore
George W. Bush in as the 43rd President on Jan. 20, 2001, the
deed was done. A majority on the U.S. Supreme Court had employed
specious logic in exploiting its unique position as the final arbiter of
American law to overturn the will of the American voters.
Now the question is
whether the next court – expected to come under the leadership of
Rehnquist’s former clerk John Roberts – will continue Rehnquist’s
unspoken judicial legacy, that partisanship and ideology trump all.