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Rehnquist to Transform Senate Into Jury

Chief Justice William Rehnquist Chief Justice William Rehnquist. (AP File Photo)

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  • By Joan Biskupic
    Washington Post Staff Writer
    Thursday, January 7, 1999; Page A1

    When Chief Justice William H. Rehnquist enters the Senate chamber today, his presence will help transform what has been primarily a political drama into a more solemn, judicial proceeding.

    Shortly after Rehnquist takes his chair elevated above the rows of wooden desks, he will ask senators to swear that they will render "impartial justice" as jurors evaluating the fate of a president. That oath immediately distinguishes the Senate role from that of the House, since the Constitution gives the House the power to impeach, or indict, a public official, and reserves for the Senate the neutral role of determining whether those allegations are true and what should be done about them.

    It will fall to Rehnquist, who wears a black robe personalized with four gold stripes on the sleeves, to keep order in the chamber, rule on questions of evidence and control the pace of the trial. A man who believes in precision and punctuality, Rehnquist is likely to keep senators in line and adherent to a strict schedule once one is set. The chief justice also is charged with the task of receiving written questions from senators to be asked of any witnesses. If it comes to it, Rehnquist has the power to break a tie vote.

    The Supreme Court has long been on the periphery of the scandal engulfing the White House, with rulings and other actions that have worked against President Clinton and ultimately favored independent counsel Kenneth W. Starr. Foremost among them was the court's unanimous decision to allow Paula Jones's sexual harassment lawsuit to proceed. Now the third branch is involved through the person of the 74-year-old chief justice, a large stooped man who is known for his bluntness and who is required by the Constitution to preside over the trial of a president.

    "Nothing emphasizes more how high the stakes are than having the highest judicial officer presiding," said University of Chicago law professor Dennis Hutchinson. Only once before has the Senate considered whether to remove a president from office, in 1868, when Andrew Johnson narrowly eluded conviction.

    Today's historic proceeding comes 27 years to the day after Rehnquist first took his own judicial oath. The Wisconsin native and Stanford University law graduate was appointed to the nation's highest court by Richard M. Nixon in 1972 and elevated to chief by Ronald Reagan in 1986.

    The chief justice already has met with Senate leaders on some preliminary matters. He has been reviewing the Senate rules, going over impeachment precedents and culling through his own research.

    As an amateur historian, Rehnquist wrote a 1992 book on impeachments. That tome, entitled "Grand Inquests," gives little sign of how Rehnquist will preside over the current trial, but it does reveal his general concern that impeachment be reserved for the extreme cases and not motivated by politics. Rehnquist concluded that the Johnson impeachment was so politically driven that if Johnson had been convicted "a long shadow would have been cast over the independence" of the presidency.

    The chief justice's writings suggest that he will view his role as largely ministerial and that he will not attempt to make decisions that strongly favor one side over another. In a 1993 high court decision, Rehnquist emphasized the Senate's "sole power" in impeachment trials. And if he intervened in a way that agitated the Senate, his ruling could be overturned by a majority vote of the senators.

    Rehnquist has emphasized that impeachment is not "a referendum on the public official's performance in office," but rather a form of judicial inquiry in which the House makes specific charges and the Senate decides whether the charges have been proven. It takes a two-thirds vote of the Senate to convict.

    Although the Capitol is just across the street from Supreme Court, the chief justice is expected to arrive by car as part of increased security in recent weeks. He is likely to be accompanied by his administrative assistant, James C. Duff, and one of his law clerks.

    Until today, Rehnquist has been offstage. But once he begins presiding, the chief justice will play a large, and no doubt memorable, role. At the Supreme Court he pounces on lawyers who confuse their facts, pokes holes in flawed reasoning and constantly admonishes spectators to keep quiet.

    Retired Justice Byron R. White once described Rehnquist as "a highly conditioned cross between a quarter horse and a racing thoroughbred," able to master a variety of complicated tasks and quote from memory any number of passages from his voluminous reading. Indeed, the chief's reputation for efficiency and a range of pastimes, from poker to painting, is legendary. He gets his opinions written and leaves the office before the sun goes down.

    The Supreme Court itself is expected to keep to its regular schedule, just as it has on other rare occasions when a justice was absent because of other obligations or illness. Oral arguments generally are in the mornings, so Rehnquist could preside at both institutions if the Senate trial took place in the afternoons. Even if Rehnquist does not join his eight colleagues on the bench, he is not prevented from voting on the cases.

    Still, some of the most important disputes of the term are before the justices this month, and the timing is not ideal for a chief justice who is a controlling presence when cases are being argued before the court.

    © Copyright 1999 The Washington Post Company

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