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History of Supreme Court is being rewritten quickly


Published: Tue, September 6, 2005 @ 12:00 a.m.


The speed with which President Bush is justifiably moving to fill the vacant seat of chief justice of the Supreme Court of the United States barely leaves time to pay tribute to William H. Rehnquist, who served on the court for 33 years, 19 as chief.
As George Will points out on the page opposite this, Rehnquist came to politics as a Goldwater conservative. It is a tribute to his personal convictions and the staying power of the conservative political movement that Rehnquist managed to bring his philosophy to bear on the highest court of the land.
Not everyone is as willing as Will to see Rehnquist's legacy in a positive light, as demonstrated by the Edward Lazarus column on this page. Rehnquist has also come under criticism from conservatives, who say he did not do enough to bring the court around to their way of thinking -- specifically that he never managed to effect a complete overturn of Roe vs. Wade.
What is not in doubt is Rehnquist's obvious intelligence, his devotion to the law as he saw it and his respect for the courts as a vital institution in a democratic republic.
History will sort out who is closer to the truth in analyzing the Rehnquist Court, Will, Lazarus or more strident critics on the right or the left.
Powerful image
In the next few days as Rehnquist is eulogized, a recurring image will be that of the chief justice, already suffering from the cancer that claimed his life Saturday, making his way down the aisle in January to administer the oath of office to President Bush. The chief justice was a man who took duty seriously.
In naming his choice to succeed Rehnquist, President Bush has chosen to add to Rehnquist's conservative legacy.
John Roberts, chosen first to succeed Justice Sandra Day O'Connor after she announced her intention to retire July 19, was a law clerk for Rehnquist 25 years ago.
As we said in July, President Bush chose a nominee for the court who appeared to be politically unassailable. That appears to still be the case, which is not to say that Roberts should get anything approaching a free pass.
Senate Democrats have every right to ask Roberts tough questions and to expect answers.
This is a nation of red states, blue states and purple states. While some Republicans have been fond of espousing a winner-takes-all philosophy now that they are in power, that is not what the Founding Fathers envisioned.
The Constitution does not give the president free rein in naming justices, it requires the advice and consent of the Senate. And the Senate was envisioned by the founders as an institution that would protect political minorities.
Time to ask
The Senate as a whole and individual senators have every right to ask -- indeed, they have a responsibility to ask -- if a nominee has a vision of freedom in America that tracks the mainstream.
Judge Roberts' paper trail is thin in areas -- he has only been a federal appeals court judge for two years. His paper trail as a government lawyer is deep, but there are questions as to when he was expressing his political philosophy and when he was simply arguing the philosophy of higher-ups.
Likewise, the year he was a clerk for Rehnquist, the justice wrote a majority opinion that upheld draft registration for only males and wrote dissents that supported searches of automobiles and homes without a warrant and opposed a lawsuit by female prison guards for equal pay. To what extent did the young clerk assist in drafting those opinions, and to what extent do they reflect his philosophy today?
President Bush has said he wants a fully functioning court by the opening of its term Oct. 3. That is doable, but only if Roberts and the administration cooperate fully in an examination of his political and judicial philosophies.
The White House is going to have to make available records from Roberts service as a deputy solicitor general from 1989 to 1993. The president can claim executive privilege for those years Roberts served the White House, but the solicitor general serves the people of the United States and those records belong to the people.
At the age of 50, Roberts stands on the verge of assuming one of the most powerful positions in the United States. It is a lifetime, unelected appointment and he could well become the longest-serving chief justice in history.
The confirmation process for such a job should be fair, open and exhaustive.


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