THE UNITED STATES

A conservative on trial

MARCI McDONALD August 18 1986
THE UNITED STATES

A conservative on trial

MARCI McDONALD August 18 1986

A conservative on trial

THE UNITED STATES

When President Ronald Reagan nominated William. Hubbs Rehnquist to be the 16th chief justice of the U.S. Supreme Court two months ago, even critics of Rehnquist’s unwavering conservatism predicted that he would receive the required Senate approval easily. The only shadow on the 61-year-old justice’s record seemed to be the fact that in December, 1981, he had been hospitalized— at first secretly—for a reported “psychotic reaction” to pain-killers he had been taking for severe back problems. But it is not Rehnquist’s health that has turned his confirmation hearings into the most bitter battle over the Supreme Court in nearly two decades. As the Senate judiciary committee prepared to vote on his nomination this week, the senators had to take into account testimony and documents that paint a disturbing portrait of the man who will likely head the nation’s highest court.

That evidence asserts that Rehnquist has argued in favor of segregated

schools, harassed black and Hispanic voters and bought two homes on conditions that specifically barred resale to nonwhites or Jews. Much of that testimony was mobilized by Washington civil rights lawyer Joseph Rauh. “It would be an obscenity to let this nomination go through unopposed,” said Rauh. “What we have here is a record

of hostility to individual rights that should not be left in his hands.” Compared to the rancor of the Rehnquist hearings, last week’s congressional investigation of Judge Antonin Scalia—Reagan’s other conservative nominee to the Supreme Court — was a model of conviviality. Senators applauded the fact that, as the son of a Sicilian immigrant, he is the high court’s first ItalianAmerican justice. That welcoming attitude was designed to show that committee Democrats were not contesting Rehnquist’s nomination on partisan grounds.

Scalia’s record showed that he has consistently staked out conservative opinions as far right of the court’s centre as has Rehnquist. Although he has never ruled on abortion in his three

years as a Washington federal appeals court judge, Scalia has written critically on the subject. In a 1979 article in the Washington University Law Quarterly, he also attacked affirmative action to employ minorities. But Scalia has been best-known for rulings giving a narrow interpretation of the right to free expression. In fact, only three days after his Supreme Court nomination, Scalia issued a 26-page appeal court opinion ruling that the U.S. government had the right to label three Canadian films—including the Academy Award-winning documentary If You Love This Planet— “political propaganda.”

In his 15 years on the court, Rehnquist has consistently voted against abortion, affirmative action, school busing and freedom of the press, while championing school prayer and the death penalty. Some Democrats charged that his opinions put him too far out of the mainstream of American law to make a suitable chief justice. In 54 cases he cast the lone dissenting vote—including a 1983 case barring tax exemptions for private schools practising racial discrimination. And he was one of two justices who opposed the court’s 1973 ruling legalizing abortion. Warned Eleanor Smeal, president of the National Organization for Women: “He’s a disaster for women.”

But the most controversial testimony against Rehnquist &l; was based not on his rulings

but on his behavior prior to his court appointment. In 1952, as a young law clerk at the Supreme Court, he wrote a memo upholding the notion of “separate but equal” schools for blacks and whites. In his 1971 confirmation hearings—after then-president Richard Nixon nominated him for the Supreme Court—Rehnquist argued that he had been expressing the views of his boss, Justice Robert Jackson, not his own. But recently Jackson’s secretary and confidante, Mrs. Elsie Douglas, has charged that Rehnquist “smeared the reputation of a great justice.” And Jackson’s biographer also contends that the opinion was totally inconsistent with a justice who later joined the unanimous ruling prohibiting segregated schools.

Four witnesses also charged that after Rehnquist entered private law practice in Phoenix, Ariz., and became a Republican activist, he tried to intimidate black and Hispanic voters attempting to exercise their franchise at polling booths after the 1962 Voters Rights Act. Despite Rehnquist’s denials, both in 1971 and early this month, the city’s assistant U.S. attorney at the time testified that he was called in to investigate complaints about Rehnquist’s interference with the voting process. Added one witness: “I may not be able to define intimidation but I know it when I see it.”

Opponents also produced copies of deeds on two houses Rehnquist purchased with clauses along racist and anti-Semitic lines forbidding their resale. He argued that he was unaware of the “obnoxious” covenants and had left the transactions to his lawyers. But a letter to the justice from his lawyer in 1974—when he was already on the Supreme Court—specifically drew his attention to the anti-Semitic clause in the deed to his Vermont house. Civil libertarians were even more disturbed by what they described as Rehnquist’s contradiction of his own earlier testimony. Said Rauh: “Justice Rehnquist has told some whoppers.”

Even though most of the committee’s Democrats conceded privately that Rehnquist was likely to win confirmation from the committee and, later, the Senate as a whole in September, their aggressive questioning of Rehnquist did succeed in planting seeds of doubt. In the process, they also warned Reagan about how they would deal with any other conservative nominees to the high court. That warning came in a week when the President predicted to a Chicago audience that by the end of his term, his court appointments— amounting to no less than 45 per cent of the entire federal judiciary—would have a long-range impact on abortion and other key social issues.

MARCI McDONALD