Let us now praise famous men -- But let's not canonize Rehnquist

UPDATE: Charlie Sykes, apparently still smarting from being exposed for posting tasteless jokes during the early days of Katrina, says this post on Rehnquist violates some rule about telling the truth about the dead.

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The late Chief Justice William Rehnquist is being eulogized by conservatives and liberals alike.

He deserves recognition for his long tenure and contributions to the American judicial system. But before he is canonized, a little history seems in order.

He was a Wisconsin native, but when President Richard Nixon nominated Rehnquist, Wisconsin Sen. Gaylord Nelson opposed him for the Supreme Court. These days, home-state ties seem to trump everything, but Nelson was more interested in Rehnquist's record than his roots.

Nelson opposed confirmation based primarily on Rehnquist's record on civil liberties. As an assistant attorney general, Rehnquist had put government expediency ahead of the Bill of Rights, Nelson said. Rehnquist had defended and supported warrantless wiretaps, preventive detention of suspects without trial, no-knock entry into private property, mass arrests, use of illegally obtained evidence against an accused, and widespread surveillance of people not engaged in illegal activity.

In fact, The Guardian reminds us in its obituary:

In circumstances that never became clear, [Rehnquist] had, [as a clerk to Justice Rovert Jackson] in 1953, written a background paper dealing with a landmark case then before the court, Brown v the Board of Education, which eventually overturned the segregated education of white and black children.

Rehnquist's memorandum strongly supported the stance taken by the court in 1896, that established the principle of "separate but equal" facilities for whites and blacks. "It is about time," Rehnquist wrote, "the court faced the fact that the white people in the south don't like coloured people; the constitution restrains them from effecting this dislike through state action, but it most assuredly did not appoint the court as a sociological watchdog ..."

Time magazine elaborates:

His stint with Justice Jackson became the focus of some scrutiny during Rehnquist's 1971 Senate confirmation process. After the confirmation hearings ended but before the full Senate voted, Newsweek printed excerpts from a memo Rehnquist had written for Jackson in 1952. The memo was titled "A Random Thought on the Segregation Cases," one of which was Brown v. Board of Education, the school-integration case then before the court. The memo noted that "it was not part of the judicial function to thwart public opinion except in extreme cases." And segregation, Rehnquist declared, "quite clearly is not one of those extreme cases ... I realize that it is an unpopular and unhumanitarian position, for which I have been excoriated by 'liberal' colleag[u]es, but I think Plessy v. Ferguson was right and should be re-affirmed." Plessy was the infamous 1896 ruling allowing "separate but equal" accommodations for blacks and whites.

After the memo emerged, Rehnquist drafted a letter to a Senate ally in which he claimed that Jackson, by then deceased, had requested the memo "as a rough draft of a statement of his views." When contacted by a reporter, Jackson's former secretary denied that her boss ever supported Plessy; later, Jackson scholar Dennis Hutchinson of the University of Chicago told the New York Times that the Justice never asked his clerks to summarize his views. "An absurd explanation," Hutchinson said. In 2001, after his own political leanings had tacked left, former Nixon aide Dean ended his book on Rehnquist with two words: "Rehnquist lied."

Although some Senators reached the same conclusion in 1971, the Senate had rejected two other Nixon Supreme Court nominees in the past two years, and it had a weak stomach for further battle. Rehnquist won his confirmation vote 68-26.

The Guardian continues:

In part this resistance [to Rehnquist's appoiontment] stemmed from the political record Rehnquist amassed after he moved to work for a legal practice in Arizona. There he became heavily involved in Republican politics, attaching himself firmly to the ultra-conservative Senator Barry Goldwater and battling vigorously against such local social proposals as racially integrated schools.

One of Rehnquist's close associates there was Richard Kleindienst, who became President Nixon's assistant attorney general and was later convicted for contempt of Congress in the Watergate scandal. Kleindienst recruited Rehnquist into the administration's office of legal counsel, where he gained a fearsome reputation as the department's most ardent advocate of wire-tapping, government surveillance and preventive detention. He also compiled a constitutional amendment (subsequently abandoned) to outlaw school bussing (mandated by federal courts to speed up desegregation).

Rehnquist's close involvement with Nixon's measures to deter anti-Vietnam war demonstrations also caused him problems when he joined the supreme court. At the justice department he had backed the army's intimidating surveillance of protesters and had publicly decried the legal action that civil liberty groups had launched against the practice.

By the time the case reached the supreme court in 1972, Rehnquist was sitting on the bench and refused to withdraw from the case. When the court ruled against the protesters by 5-4 - in other words by Rehnquist's casting vote - there was another uproar. The New York Times attacked him for impropriety and 110 law professors signed a letter accusing him of unethical behaviour. It was water off a duck's back: as the years went by, a succession of supreme court judgments emerged which had been signed by all the justices except Rehnquist. As these 8-1 decisions mounted, Rehnquist became known to the more irreverent court clerks as the Lone Ranger.

Back to Gaylord Nelson.

Rehnquist was "an able lawyer, a man both of deeply held convictions and personal integrity," Nelson said, but that was not enough. "On the question of the guarantee of individual rights in the first ten amendments to the Constitution, I am a strict constructionist," Nelson said in a Senate speech. "The Bill of Rights was specifically adopted to protect individual liberties against oppression and the excesses of governmental power. Mr. Rehnquist's interpretations of these guarantees are at such variance with my own that I am unable to support his nomination."

Rehnquist. of course, was confirmed and joined the court in January 1972.

The rest, as they say, is history, and both Rehnquist and Nelson are gone. But the record remains.

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ANOTHER VIEW: The Real Rehnquist, by David Corn, Washington editor of The Nation.