Rehnquist's Legacy: A Partisan Court
By Robert Parry
September 7, 2005
As the late U.S. Supreme Court Chief Justice William Rehnquist is warmly remembered for his conservatism and his defense of judicial prerogatives, a troubling part of his legacy is being ignored his unprecedented politicization of the American courts, at times making them little more than an enforcement arm for the Republican Party.
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 GOPs 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 Rehnquists partisanship is being forgotten amid this weeks 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 Rehnquists confirmation to head the high court and Ronald Reagans 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 Reagans legacy and George H.W. Bushs 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 embattled army.
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 special prosecutors.
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 Rehnquists 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 Walshs strongest defenders. By putting Sentelle in charge, the chief justice picked a judge who had already voted to overturn Walshs hard-fought convictions of Reagans 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 Sentelles 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 MacKinnons 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 down.
But Sentelle remained as Rehnquists 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 Democrat.
Sentelles first special prosecutor was named when a scandal arose in fall 1992 over the Bush administrations illegal search of Bill Clintons passport records seeking derogatory material that could be used to destroy Clintons political viability.
Sentelles 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 Parrys Secrecy & Privilege: Rise of the Bush Dynasty from Watergate to Iraq.]
Once Clinton took office, Sentelles 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. Bushs 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 administration.
Hunting the President
Regardless of how one views the merits of the Clinton scandals, theres 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 MacKinnons 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 Starrs appointment in 1994 because of the appearance of partisanship arising from Starrs senior position in the prior administration.
Judge MacKinnon also expressed concern about Starrs 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. Bushs campaign endeavored to link Vice President Al Gore to the Clinton sleaze. According to polls, the Republicans succeeded in spreading this taint to Gore.
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.
Bushs 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 courts 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 Rehnquists 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.
USA Today 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 elections.
A Conservative Split
This modified state ruling opened a split among the five conservatives. Justices Sandra Day OConnor 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 reported.
OConnor 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 state.
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 tiny lead.
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 OConnor 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 OConnor-Kennedy position, the only fair conclusion would have been to throw out Floridas presidential election in total. After all, the U.S. Supreme Court was effectively judging Floridas 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 OConnor-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 didnt set clearer standards, that would be struck down as violating the equal protection principle. Heads Bush wins; tails Gore loses.
After the courts 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 courts role in the case, Rehnquist seemed unfazed by the inconsistency of the logic. His overriding rationale seemed to be that he viewed Bushs 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. Rehnquists 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.
Scholars interpreted Rehnquists remarks as shedding light on his thinking during the Bush v. Gore case as well.
Hes 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.coms Bushs 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 Florida.
If one takes Rehnquists 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 voters.
Ignoring the Voters
Gore won the national popular vote by more than a half million votes and according 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.
This 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 Rehnquists motive wasnt 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 Rehnquists real motive was neither evenhanded enforcement of the law nor the nations 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 Rehnquists former clerk John Roberts will continue Rehnquists unspoken judicial legacy, that partisanship and ideology trump all.
Robert Parry broke many of the Iran-Contra stories in the 1980s for the Associated Press and Newsweek. His new book, Secrecy & Privilege: Rise of the Bush Dynasty from Watergate to Iraq, can be ordered at secrecyandprivilege.com. It's also available at Amazon.com, as is his 1999 book, Lost History: Contras, Cocaine, the Press & 'Project Truth.'
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