Mulhauser on Rehnquist:
Over at the New Republic Online, Dana Mulhauser has a rather odd article on Chief Justice Rehnquist that manages to paint Rehnquist as egotistical and self-important without offering any real evidence to back up the claim. The article is mostly about Mulhauser's failed effort to write another article that is not directly about Rehnquist, but Mulhauser manages to turn that unrelated experience into speculation that Rehnquist has not yet announced his resignation because Rehnquist revels in the power of being the Chief Justice:
When considering whether to nominate Rehnquist, Nixon specifically instructed his staff to find out whether Rehnquist had been #1 in his class or merely #2 or #3. Although it seems strange to modern ears, Nixon apparently thought it would be a significant political selling point if Rehqnuist had been #1 in his Stanford class. When Nixon announced the Rehnquist nomination, he made a big deal about how Rehnquist was #1 in his law school class at Stanford.
Maybe Rehnquist bragged about being #1 in his class before his nomination to the Court. But I doubt it. The more likely explanation is that the one who needed to brag about Rehnquist's law school class rank was Nixon, not Rehnquist.
Rehnquist knows his place in the world, and he revels in it. Which is not to say that a resignation might not be forthcoming today, tomorrow, or next week. But when retirement does call, Rehnquist will be fighting it all the way. This is not a man with any desire to rush from the limelight. This is a man who is Number One--and wants to make sure you know it.The Chief Justiceship of the United States is kind of a cool job, and my sense is that most people who have had the job weren't eager to leave it. But what's the evidence that Rehnquist "is a man who is Number One--and wants to make sure you know it"? Well, the main evidence Mulhauser offers is that we know Rehnquist graduated first in his class from Stanford Law School, even though Stanford did not publish class rankings. According to Mulhauser, this is likely evidence that Rehnquist "spread the word" so everyone would know how smart he is:
In all likelihood, the only people with the knowledge and incentive to keep track of the rankings were the future justices themselves. If we know that Rehnquist was Number One and O'Connor was Number Three, then it is probably because they have spread the word.There's a different and more likely explanation for why we know this, however. According to John Dean's book about the Rehnquist nomination, The Rehnquist Choice, Rehnquist was nominated after President Nixon had floated a series of names that had been shot down as mediocrities. Nixon decided that he needed to find someone who everyone agreed was brilliant. Nixon was impressed with Rehnquist in large part because Rehnquist had clerked for the great Justice Robert H. Jackson and was at the top of his class at Stanford Law.
When considering whether to nominate Rehnquist, Nixon specifically instructed his staff to find out whether Rehnquist had been #1 in his class or merely #2 or #3. Although it seems strange to modern ears, Nixon apparently thought it would be a significant political selling point if Rehqnuist had been #1 in his Stanford class. When Nixon announced the Rehnquist nomination, he made a big deal about how Rehnquist was #1 in his law school class at Stanford.
Maybe Rehnquist bragged about being #1 in his class before his nomination to the Court. But I doubt it. The more likely explanation is that the one who needed to brag about Rehnquist's law school class rank was Nixon, not Rehnquist.
If you're first in your class and others find out about it, it doesn't follow that you told them. If Stanford had any interest in promoting the career of its top students, it might have gotten the word out, at least to Jackson's chambers.
Yes, he likes the stripes, and he will correct lawyers who refer to him at oral argument as "Justice Rehnquist," but that doesn't mean that his enjoyment of being Chief is so strong that it would trump all other factors in his decision on whether to retire.
I've never been too impressed with Mulhauser's stuff, anyway.
Wouldn't it say alot more about the respect and tact of lawyer(s) in question?
On the other hand, I agree with Jon that in person he is down-to-earth, not stuffy or elitist at all. He's less concerned, I'm told, with tony educational backgrounds for his law clerks than are some other Justices. More generally, his reputation supports the down-to-earth theory, and makes me think that the Chief Justice and the gold stripes are more the exceptions rather than the rule.
Very general question: To what extent do clerks of Supreme Court justices get to interact with the justices (both "theirs" and the other 8)?
At the risk of ignoring that point, it may also be that Rehnquist's noteworthy behaviors -- the insistence on "Chief," which rubs me the wrong way (especially as a petty correction to oral advocates), and perhaps even the robes! -- aren't just personal in character, but may reflect his commitment to maintaining the respect he thinks is owed the office of the chief justice. This is consistent with his interest in the Court and its traditions (if not the tradition of its robing).
Anyway, I take that view in a recent piece available on SSRN . . .which then argues that the office of the chief justice as we know it can be abolished.
And you might also add: Scolds counsel when they have the nerve to refer to Supreme Court judges [see Article III] as, e.g., "Judge Rehnquist."
So what's the best term for it? Pompous? Arrogant? Self-important?
This is clearly a man so taken with the trappings of his job that he is willing to put his own status above the orderly functioning of the Court. Or (as I often think when I see elderly people in poor health clinging to their jobs -- choose the Senator of your choice) so disaffected from their families that they are afraid to call it quits to "spend more time" with those same families.
Salisbury was Order of the Coif, which puts him somewhere between #2 and #10, so there's at least a one-in-eight chance that he's the guy. The only other Stanford 1952 Order of the Coif I could find on the web was Loren H. Russell—not many lawyers who graduated in 1952 are still practicing.
"This is clearly a man so taken with the trappings of his job that he is willing to put his own status above the orderly functioning of the Court. Or (as I often think when I see elderly people in poor health clinging to their jobs -- choose the Senator of your choice) so disaffected from their families that they are afraid to call it quits to "spend more time" with those same families."
Rehnquist's wife is dead. She did a few years ago. Who do you want him to spend time with?
Also, do you feel the same way about Justice Stevens, who is 85?
Yes, I do. In other words, this has nothing to do with my political leanings.
His three children, perhaps his grandchildren (if he has any), maybe a good book, maybe his dog or even his tropical fish.
O.K., the comment is a bit flippant, but I do believe that people who refuse to retire when they are in failing health and facing their own mortality generally do so more out of fear (what on earth will I do now? this has been my whole life for 50 years?) than out of any sense of duty. And my wife -- a liberal -- is not too happy with Stevens hanging on into his 80s when he had 8 good chances to retire during the Clinton years.
Could the pomp be taken too far? Oh, sure. I once tried a case before a state court trial judge who insisted on wearing bright red robes himself (not mere stripes, but the robes entire!), and that all of the lawyers in his court refer to each other as "Doctor" (in European fashion, in recognition of the juris doctorate degrees we typically possess). I know that he was a sweet-natured and modest man, and that his concern was for due respect being shown for the positions, rather than something based on his personal ego. However, he was eventually reprimanded (mildly) by the state judicial commission for carrying the pomp too far; his courtroom had turned into something of a circus, and his practices were having the opposite effect of what he intended.
But certainly almost everyone can agree that William H. Rehnquist's conduct throughout his years on the bench, both as an Associate Justice and as the Chief Justice, has been honorable and dignified, regardless of whether one agrees with his judicial philosophy. And recall the man's calm and dignity as he filled his office's constitutional role of presiding over the Senate impeachment trial of Bill Clinton. Surely we can agree — and again regardless of our respective views about the outcome of that proceeding — that in the midst of that frenzy and firestorm, Chief Justice Rehnquist rendered the nation exemplary service. The criticisms of him on "style points" strike me as extremely petty.
Not "too easy" in the sense that it isn't intellectually demanding, or even in the sense that it often requires great mental -- and sometimes physical -- stamina. Rather, it is "too easy" in that the Court decides its own workload, Supreme Court judges [not "justices"] no longer ride circuit (or, in an even more demanding requirement, handle the occasional district court trial), and Supreme Court judges have ample time to engage in expense-paid travel to lecture at summer sessions in Europe or at other resort locales.
What I'm saying is simple: if the job of Supreme Court Justice required the rigors of most jobs, you wouldn't see many 80 year old men or women clinging to it. Bringing back some of the old traditions (such as circuit riding) would also serve as a nice means of reconnecting these gerontocrats to their distant populace.
By the way, is there any restriction on the president requiring a promise from a Court appointee that he/she will retire at age 70? It wouldn't be enforceable at law, but the pressure to keep such a promise (if made public) would be intense.
What is your guess for how many hours a week the Justices work?
Not if you were black.
I don't know how many hours each Justice works per week on average, and I absolutely do not care.
I know their clerks generally work like demons. They're doing the stuff that requires grinding: finding and checking cites and quotations, unsplitting infinitives, reading mind-numbing cert petitions on denials of individual social security benefits, etc.
But I want wisdom from Justices, not billable hours. Anyone who doesn't get that is absolutely clueless about the function of the Court.
This guy.
He is a small-town lawyer in Northern California.
Ah, the road less taken.