For High Court's Stern Taskmaster, a New Role in Senate Trial
Washington Post Staff Writer
Tuesday, December 22, 1998; Page A12
At the Supreme Court, Chief Justice William H. Rehnquist controls things down to the nanosecond. He cuts off lawyers mid-syllable when their time before the bench expires. He corrects mispronunciations. He doesn't abide flourish or fawning. In short, once Rehnquist puts on the black robe, he is impatient, intimidating and domineering.
Now that President Clinton has been impeached, this creature of the controlled venue could soon be presiding over a very unbounded Senate trial, a monumental event that would be part political, part judicial, with many of the rules written as the process goes along.
Rehnquist, 74, a big, stooped, bespectacled man who walks the court grounds each morning without much notice from tourists, will likely rule with his signature brusqueness if a trial is held. But as someone who has written about the Senate's "sole" power to try impeachments, Rehnquist also would not try to defy the will of its members.
Legal experts say he probably would not allow himself to rule on the merits of any charges against Clinton, cast a deciding vote or, at the outset, accept a defense motion to throw out the House's impeachment charges without any Senate consideration.
But Rehnquist would not shy away from setting a clear tone. And the chief justice knows better than most about the seriousness of the moment.
An amateur historian, Rehnquist in 1992 wrote a book, "Grand Inquests: The Historic Impeachments of Justice Samuel Chase and President Andrew Johnson," about the impeachments of those officials. Observing the political motivations that led to the charges against Johnson in 1868 and Chase six decades earlier, Rehnquist concluded that "a long shadow would have been cast over the independence" of the presidency and the judiciary if either man had been convicted.
"The importance of these two acquittals in our constitutional history can hardly be overstated," he wrote, stressing that impeachment should be reserved for flagrant abuse of office. He has declined to comment on the case against Clinton.
A 1972 appointee of Richard M. Nixon who was elevated to chief justice by Ronald Reagan in 1986, Rehnquist has a deep partisan streak. But he also has a high regard for constitutional duty and the separation of powers, and some legal observers believe he would not make any politically inspired move while presiding over the impeachment trial.
"It would be totally out of character . . . for him to do anything that would be seen in any way as siding to get the president," said William Van Alstyne, a law professor at Duke University.
"I don't think he would feel comfortable ruling on anything that goes to the merits" of any charges against Clinton, said Michael Gerhardt, a law professor at the College of William and Mary who wrote a book on impeachments. "I think he will be fair, but evenhanded. I think he'll bring a real serious air."
Rehnquist's strong conservatism during his 26-year tenure on the court has generated criticism from the left and praise from the right, but people on both sides agree he is his own man. There is no hand-wringing or uncertainty in his opinions. If he reads his reviews, he doesn't let on. He does things his way. In January 1996, when a devastating snowstorm shut down the federal government and most of Washington, Rehnquist, a native of Wisconsin, continued with the court's regularly scheduled business, bringing in the justices with four-wheel-drive vehicles to hear a case. He has resisted efforts to turn the court's annual Christmas party into a nonsectarian "holiday" affair or move the big Christmas tree to a less prominent position at the institution that safeguards the separation of church and state.
He is not swayed by status, and his impatience with lawyers who come to the court extends to all ranks. When independent counsel Kenneth W. Starr, who helped bring Clinton to this moment, was arguing before the court as a solicitor general in January 1993, Starr said, "Let me share with you a bit of the record in the case." Rehnquist scoffed, "Why don't you just tell us about the record, rather than share it with us."
During the grueling 1986 Senate confirmation hearing for his elevation to chief justice, Rehnquist greeted the attacks on his legal views and his integrity with a public shrug. He was approved by a vote 65 to 33, which at that time was more opposition than any other high court nominee in the 20th century had survived. (Five years later, Justice Clarence Thomas was confirmed by an even narrower margin.) After Rehnquist was confirmed, he appeared before reporters acting for all the world as if nothing had happened and said with a certain casualness that he was "looking forward to the future."
Now, he may have another date with the Senate.
The Constitution says that when the president is subject to a Senate trial, the chief justice rather than the vice president, who also is president of the Senate should preside. The chief is in the chair to avoid a conflict of interest as a stand-in of sorts but also, scholars say, to lend a judicial dimension to what the framers designed as a primarily political occasion. He can be overruled by senators on any matter, a curious situation for the man who holds the highest judicial office in the land.
Now the Senate has received impeachment papers from the House, and if a trial is held, the proceeding would loosely follow the model of a courtroom trial, including examination and cross-examination of witnesses and closing arguments from lawyers. The Senate would determine the rules, procedures and standards for the hearing, likely in conjunction with Rehnquist.
Rehnquist has suggested that it might not go smoothly. In his book, "Grand Inquests," he referred to early motions in Johnson's trial 130 years ago: "These initial proceedings demonstrated, as no amount of abstract argument could, how difficult and unwieldy it is for a body consisting of fifty-six members to rule on what are routine procedural questions in a normal trial. Ordinary courts have standard rules that govern some of these questions, but the Senate had only a few precedents from impeachment trials that had taken place long ago. The senators were also by nature loquacious."
Instead of 56 senators, there are now 100. The comparative loquacity level is debatable. But television wasn't around in 1868. That would be especially different for Rehnquist, who has kept cameras out of his courtroom.
Twenty-six written rules exist, drafted for Johnson's impeachment trial and updated after the Watergate scandal in 1974. But the Senate has lots of leeway, and big questions loom over rules of evidence and burdens of proof. Rehnquist could hear motions arising out of these matters but could be overruled by the Senate.
The Supreme Court in 1993 ruled that the Senate has sole authority to determine its procedures and cannot be second-guessed by the courts. Rehnquist himself wrote the opinion upholding the Senate's authority to have a committee, rather than the full Senate, hear the evidence against an impeached Mississippi judge.
If a Clinton trial comes to pass, it is unknown whether the regular work of the Supreme Court would be affected. Justice Sandra Day O'Connor said recently she thought business could continue as usual, since the justices usually hear arguments in the morning and the impeachment trial could be scheduled for afternoons. The court's January and February calendar is rather light, and the chief justice need not listen to oral arguments with the other eight justices able to rule on a particular case.
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