From the WSJ Opinion Archives
Dershowitz: Rehnquist Was 'a Republican Thug'
The
sad news cannot be called unexpected, but the timing made it a shock: Three
days before the opening of Judge John Roberts's confirmation hearings, Chief
Justice William Rehnquist died of cancer.
Things may be about to get ugly in Washington. It took only a few hours for things to get ugly in Cambridge, Mass. The news of Rehnquist's death crossed the Associated Press wires last night at 11:06 EDT. At 1:50 a.m. Alan Dershowitz, a Harvard law professor, gave a jaw-dropping telephone interview to Fox News Channel's Alan Colmes. We've transcribed it; here it is in its entirety:
Colmes: This is a Fox News alert. Earlier tonight in suburban Virginia, Chief Justice of the Supreme Court William Rehnquist passed away of thyroid cancer at his suburban Virginia home surrounded by his three children and his family. And joining us now to talk about it, famed attorney Alan Dershowitz. Mr. Dershowitz, thank you so much for being with us.
Dershowitz: Well, thank you.
Colmes: And how will this change the court, and what will William Rehnquist's legacy be?
Dershowitz: Well, William Rehnquist was one of the most judicially active judges. He was a judicial activist in the--in every sense of that term. He struck down more federal statutes than almost any other sitting judge. He intervened often in cases where there was an adequate state ground. You know, you hear so much about judicial conservative, judicial activist. He was a judicial activist by any statistical count. By any measure, he was more active than most of the so-called liberal justices. A striking example--
Colmes: But would it be fair to say that a conservative might call him an acti--or a liberal might call him an activist and a conservative who might tend to agree with him would call him a constitutionalist?
Dershowitz: No. I think you'd have to call him an activist, whether you are conservative or liberal. That is, he struck down congressionally enacted statutes because he didn't think that they comported with federalism. Take the most striking example. He had written for 30 years that the equal protection clause only applies in racial matters--it doesn't apply to aliens, it doesn't apply to age, it doesn't apply even to women; it only applies to race, that the 14th Amendment was written--the equal protection clause was written to protect blacks. Then comes along Bush v. Gore, and he joins the decision striking down the Florida count on the ground that it denied equal protection for a chad to be counted differently in one district than another--something that totally violated everything he had written for the previous 25 years. He was a Republican justice--
Colmes: But would you compare the--
Dershowitz: --and his vote could always be counted on by the Republicans.
Colmes: Is there a precedent for what will be known as the Rehnquist court? How would you characterize that court, and are there precedents historically for that? The Warren court was called activist a couple of decades earlier.
Dershowitz: He was much more activist. And I think the Rehnquist court was never the Rehnquist court. He moved more toward the center as he became chief justice and as he had Scalia and Thomas on his right flank and of course most of the rest of the court in the center or on his left flank. It--the decisions of Justice Rehnquist are not taught in law schools as great decisions. He'll be remembered primarily for his votes rather than for the content or quality of his decisions. And it's consistent throughout his life. He started his career by being a kind of Republican thug who pushed and shoved to keep African-American and Hispanic voters from voting.
Sean Hannity: All right--
Dershowitz: He had a restrictive covenant in his own lease which precluded the sale to Jews.
Hannity: Let me go, uh--
Dershowitz: There were so many things in his background that were extremely right-wing.
At this point, Hannity cut Dershowitz off and went to another guest. At the end of the hour, Hannity pointedly omitted Dershowitz when he thanked the guests who'd appeared to comment on Rehnquist's death.
Wow, what can one say about Dershowitz's appalling performance? For one thing, his eagerness to paint Rehnquist as a "judicial activist"--not only "much more activist" than the Warren court but indisputably so!--shows that this is an argument the left has lost. Rather than defend, say, Roe v. Wade (in which Rehnquist dissented) as a justifiable work of judicial activism, they invent tendentious redefinitions of the term in a transparent attempt at judicial jujitsu. By Dershowitz's lights, Roe wasn't "activist" at all because it struck down a state law rather than a "congressionally enacted statute."
Dershowitz makes other assertions that are either dishonest or ill-informed. Rehnquist didn't believe that the equal protection clause applied to women? Actually, in U.S. v. Virginia (1996), Rehnquist wrote a concurring opinion in which he expressly endorsed the majority's holding that the Virginia Military Institute's all-male military policy violated equal protection. Justice Antonin Scalia was the lone dissenter.
"His vote could always be counted on by the Republicans"? Tell that to Ted Olson. No, we're not talking about Bush v. Gore, in which Olson represented the president-elect, but about Morrison v. Olson (1988), in which Olson unsuccessfully challenged the independent counsel statute. Again, Scalia was the lone dissenter.
Granted, that ruling later came back to bite the Democrats, but presumably even Dershowitz isn't a sufficiently wild-eyed conspiracy nut to suggest that Rehnquist somehow knew a decade in advance that he would preside over an independent-counsel-inspired impeachment trial of a Democratic president.
Finally, to respond to the death of a respected public servant by disparaging his intelligence and calling him a "thug" seems plain hateful. Democratic politicians presumably are clever enough not to spit on Rehnquist's grave, but they may well direct similar invective at whomever President Bush chooses to succeed the chief.
Two
Seats, Maybe Three
Two Supreme Court vacancies at once is an unusual circumstance but far from
an extraordinary one. It almost happened in 1968, when Chief Justice Earl Warren
announced his retirement and President Johnson nominated Associate Justice Abe
Fortas as chief. Johnson also nominated Judge Homer Thornberry to Fortas's seat,
but that vacancy failed to materialize because the Senate blocked Fortas's nomination
(in what reactionary liberals often describe, falsely, as a "filibuster";
see here
for the real story), partly because of concerns about Fortas's ethics.
Three times in recent decades the high court actually has had two vacancies at once; on two of those occasions, Rehnquist was appointed:
- In 1969 Warren and Fortas both retired. President Nixon replaced Warren
with Warren Burger. The Senate voted against Clement Haynsworth and G. Harrold
Carswell for Fortas's seat before finally confirming Harry Blackmun.
- In 1971 Justices Hugo Black and John Marshall Harlan retired within days
of each other. Nixon nominated Lewis Powell and Rehnquist, respectively, to
replace them.
- In 1986 Burger retired as chief justice and President Reagan elevated Rehnquist and appointed Antonin Scalia to replace Rehnquist as associate justice.
There exists the possibility of a third vacancy, should the president elevate an associate justice to chief. It is by no means assured that he will; of the 16 men who've served as chief justice, only three were elevated directly from the court. In addition, Justice Charles Evans Hughes, who quit the court in 1916 to run for president, became chief in 1930 when President Hoover appointed him.
Sen. Chuck Schumer, appearing on "This Week With George Stephanopoulos," put forward a preposterous suggestion:
I think it would be a great idea for President Bush to ask Justice O'Connor to stay on as chief justice for, say, a year. She is respected by all sides. At a time when the nation needs unity and stability more than ever, she would bring it, and it would be a breathtaking choice. And then we could proceed with the nomination of Judge Roberts for associate judge [sic]. But having Justice O'Connor stay as chief justice--the first woman chief justice, someone respected by just about everybody--would be a huge, huge step to unity in this country, particularly on the judiciary, which has been such a divisive issue.
So the president is supposed to appoint a temporary chief justice with the promise that she would retire just in time for the Democrats (they hope) to pick up Senate seats, strengthening their hand in waging a campaign against her replacement? Dream on, Chuck.
Our own favored combo would be Clarence Thomas for chief and Miguel Estrada for associate justice. This is only slightly more likely than Chief Justice O'Connor--but hey, if Chuck Schumer can dream, so can we.
Mary Landrieu's Precarious Position
Chief Justice Rehnquist's death comes at a time when the Angry Left is even
angrier, and more restless, than usual. With the John Roberts hearings about
to begin, many far-left groups have been pressing Democratic senators to bloody
him up, especially by insinuating that he is racist. That pressure will only
increase now that Rehnquist's death has increased the stakes.
Meanwhile, as we noted Thursday, the Angry Left, acting in the same opportunistic spirit that animates looters, has seized upon hurricane Katrina in an attempt to score political points against the president. As we noted Friday, this campaign even includes racial demagogy--i.e., the suggestion that the president deliberately allowed Katrina to wreak destruction because New Orleans is a majority-black city (never mind that many majority-white parishes and counties were also devastated).
As long as the Republicans hold 55 Senate seats, the Democrats cannot realistically hope to defeat a Bush Supreme Court nominee. To do so would require six Republicans and all 45 Democrats (Jeffords included) to vote "no." Six is the number of Republicans who voted against Robert Bork in 1987, and there were more GOP liberals in those days.
The Democrats could filibuster, and will likely come under tremendous pressure to do so. But seven of them are on record as promising not to. At least three would have to break the agreement, and if they did, the Republicans could invoke the "nuclear option" to end the practice.
Right in the middle of all this is Sen. Mary Landrieu of Louisiana. Landrieu was re-elected in a 2002 runoff, 52% to 48%, after an open primary in which three Republicans combined won a majority. Two years later Louisiana voters elected a Republican senator for the first time; David Vitter won the primary outright with 51% of the vote. Thus Landrieu has to be viewed as potentially vulnerable when she faces the voters again in 2008.
Landrieu was one of the seven Democrats who joined the filibuster compromise; she even voted in favor of confirming Priscilla Owen to the Fifth U.S. Circuit Court of Appeals, which has its headquarters in New Orleans. In other ways as well, she has staked out a position as a moderate Democrat, which is a necessity in a conservative state like Louisiana.
But like all Senate Democrats from the South (all four of them, these days) Landrieu is abjectly dependent on the black vote. If the Angry Left and their supporters on the Senate Judiciary Committee go racial on Rehnquist's replacement, as they did with Bork, Landrieu may feel compelled to break her no-filibuster promise--especially given the poisonous claims about Katrina.
But if Landrieu joins a filibuster, especially after promising not to, she may pay a price in 2008 with nonblack voters, whose support she also needs to win re-election. Landrieu has got to be hoping Bush's appointees have smooth sailing, but that won't happen if the Angry Left can help it.
Moonbats
on Speed
Over at DemocraticUnderground.com, "Spazito" weighs in with a theory
about Chief Justice Rehnquist's death:
Bet he died days ago and they are just announcing it now to try and take the heat off bush [sic]. One man has died, well guess what, thousands have died and more are still dying.
It was inevitable that someone would suggest this eventually. But Spazito did it at 11:10 p.m. EDT last night--four minutes after the announcement that Rehnquist had died!
Alan Dershowitz may be a "famed attorney," but compared with these DUmmies, he's none too swift.
(Carol Muller helps compile Best of the Web Today. Thanks to C.E. Dobkin, Kevin Pohl, Michael Segal, Shelley Taylor, Allen O'Donnell and Brian Kalt. If you have a tip, write us at opinionjournal@wsj.com, and please include the URL.)
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