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Judges Agree They Don't Envy Rehnquist

Rehnquist Chief Justice William H. Rehnquist presides. (AP)

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  • By Frank Ahrens
    Washington Post Staff Writer
    Thursday, February 4, 1999; Page C1

    It's difficult to watch Chief Justice William Rehnquist preside over the Senate impeachment trial without wishing for a cartoon thought balloon above his head.

    The thought balloon, an indispensable tool for granting insight, has clued us in on the inner brain workings of the crafty Wile E. Coyote and the inscrutable Phantom. It would be a big help now, as the top jurist returns today to solemnly plow through the coma-inducing process. Hard to figure out what a man is thinking when he only says a few dozen words a day.

    There he sits, the leader of the republic's preeminent judicial body, the manifestation of wisdom and rectitude, the Solomonic ideal, and he is reduced to – thanks to our Constitution – the role of bingo caller: Unfold the paper, read the number; unfold the paper, read the senator's question.

    When he does speak, there's little he can say. He can't question the House managers or senators – like a courtroom judge can quiz lawyers – he can only issue rulings.

    Last Thursday, Rehnquist was hauled into the Senate and back out, twice, for approximately five minutes each, to listen to Sen. Trent Lott say senators were still trying to figure out what they were going to do in his courtroom. And they'd let him know when they'd decided. Later in the day, they came back out for voting. Rehnquist sat back in his big chair and watched.

    What must he be thinking?

    Vincent Femia, a semi-retired Prince George's circuit court judge, has an idea:

    "Why, God, if I'm dead, didn't you make this go away?"

    Rehnquist, 74, unlike grandstanding members of Congress, has not talked to the media during the trial. He laid out his views on the matter at hand in his 1992 book, "Grand Inquests," a history of the impeachments of President Andrew Johnson and Justice Samuel Chase. Even with his expertise, some local judges and legal analysts say this trial can't be much fun.

    "I keep trying to watch to see if his eyes blink out like Little Orphan Annie's," says Femia. "You do know judges sleep on the bench, don't you? You try to sleep straight up, so if your head clunks back, it wakes you up. It's embarrassing if your head clunks forward and smacks on the desk."

    Everyone is quick to point out that the prosaic nature of the proceedings is not Rehnquist's fault. His role as a robed clerk is mandated by the Constitution, which keeps the power to remove the president in the hands of the Senate. Some even admire his stamina and fortitude in such an impotent role.

    "He doesn't have any of the power he has in his own fiefdom, and yet this is the procedure and he does it," says Roger Cossack, co-host of CNN's "Burden of Proof." Cossack once argued – and lost – a case before the Rehnquist-led Supreme Court. "You have the eminence of this incredible jurist and we really don't use him. It's a symbolic presence in a political trial."

    Not only is Rehnquist's role reduced essentially to that of a note-passer in a grade school spat, he is stripped of a judge's basic power – control of the courtroom, Cossack says. Rehnquist can make rulings, sure, but those rulings can be overturned by the jurors – the senators. What judge would want to run a courtroom like that?

    "It's hard going from being the presiding judge of the Supreme Court, where your word is law, and then come before a Congress knowing they can overrule you with a majority vote," says Ed Koch, former New York City mayor who now presides over TV's "The People's Court."

    Koch has been watching the proceedings on TV – for the lawyers' performances, not Rehnquist's. It hasn't been compelling viewing.

    "It's not as exciting as a case I had on 'The People's Court' involving a python that swallowed a Chihuahua, but, on the other hand, it's far more important."

    Montgomery County Circuit Judge Patrick Woodward hasn't seen much of the Senate trial – he's working in his own courtroom – but it has been the topic of conversation among his judge buddies. They're sharply divided, he reports, on whether the two impeachment charges – perjury and obstruction of justice – rise to the level of high crimes and misdemeanors, even if they are provable, which is in doubt.

    One thing they all agree on, though, is the high humor value of Rehnquist's gold-braided robe, inspired by a Gilbert and Sullivan operetta. Everyone's been riffing on the four stripes on each sleeve, Woodward says.

    "Someone came up to me and said, 'What are you going to be today? A sergeant?' And I said, 'What are you talking about?' " he says. "Then I got home and saw the robe on TV and I said, 'What's that?' "

    One thing everyone can agree on, however, is that Rehnquist has pulled dull duty. Sure, he's on TV every day. Sure, his name will go down in history as presiding over the second presidential impeachment trial in the country's history.

    But he still has to sit through it all. Femia puts it succinctly:

    "Thank Christ it's not me."

    © Copyright 1999 The Washington Post Company

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