Rehnquist Wrote the Book on Impeachment

WASHINGTON â€”  As a part-time historian, William H. Rehnquist has warned that impeachment can easily become excessively partisan, “an apocalyptic confrontation between good and evil, when customary restraints must be cast off in order that evil may not triumph.â€�

But fortunately, the Senate has not allowed itself to become a “partisan tribunal . . . willing to undermine the fundamental principles of the Constitution in order to remove a political enemy from office.�

So he wrote in his 1992 book, “Grand Inquests,� which chronicled the 19th century impeachments of Supreme Court Justice Samuel Chase and President Andrew Johnson.

And now, thanks to his full-time job as chief justice of the United States, Rehnquist is set to preside over the Senate’s only presidential impeachment trial of the 20th century.

Friends say that he is not looking forward to the duty.

Unlike politicians who revel in the spotlight, the 74-year-old Rehnquist relishes his privacy. He enjoys walking alone and unrecognized on the streets of Capitol Hill. On occasion, tourists stop to ask him for directions, including how to find the Supreme Court. He also browses unnoticed in his neighborhood video store.

A starring role in a televised Senate trial of President Clinton, expected to start in January, may end his anonymity.

His task will be to bring judicial dignity and impartiality to a process that so far has lacked both. And many who know him say he is uniquely suited to the job.

“I think when he goes to his grave, you will not know his true view of the impeachment. He will be utterly indifferent to the outcome,� says Washington attorney Charles J. Cooper, a former law clerk to Rehnquist.

As the case’s presiding judge, he will rule on motions, including crucial questions on what evidence can be admitted and whether witnesses will be heard.

But unlike other judges, his rulings can be overturned by the jury. A senator can challenge one of his decisions and call for a vote to reverse it, with a simple Senate majority determining the outcome.

The uncertainty of it all may make for a rocky beginning.

“He doesn’t suffer fools gladly,� one veteran high court lawyer said of Rehnquist. “The senators may test his patience.�

However, if the Senate proceeding at all resembles the workings of the Supreme Court, Rehnquist will soon take control.

After serving since 1972 as an associate justice, he took over as chief justice in 1986 after the fractious, 17-year reign of Warren E. Burger. During the Burger years, the justices spent hours haggling in their weekly conferences, and their opinions often emerged as the piecework of a warring committee. Rather than formulate a rule of law, each justice sounded off on his own.

By contrast, Rehnquist has run an effective, collegial court. He has clear views, a decisive mind-set and amiable manner. The combination seems to work exceedingly well, at least within the closed confines of the Supreme Court.

Some complain that the court is actually too efficient under Rehnquist. He hates to waste time in protracted arguments. “Let’s put it in writing,� he often says as a prelude to ending the conferences and sending the justices back to their chambers, where they exchange written memos.

In the Burger era, the justices met during the entire last week of September to go over the appeals that had arrived since they had recessed in late June. Typically, more than 1,500 cases were before the court, resulting in endless arguments over what issues were worthy of full hearings. Tempers flared--and it was only the first week of the new court term.

Weeklong Conference Now Lasts 3 Hours

Under Rehnquist, the formerly weeklong conference lasts three hours. In September, 1,701 appeals were considered and voted on--before lunch.

During their weekly meetings, Rehnquist leads off the discussion, and the justices say that he states his opinions forthrightly, almost always taking the conservative side. But they also say that he does not seem perturbed if others disagree. Usually, however, Rehnquist’s view prevails.

It is by no means certain that he can impose much order and discipline on 100 senators, but lawyers who know him expect he will try.

“I’m certain he will try to move things along at an orderly pace,� said Washington attorney Carter G. Phillips. “He always believes in making the trains run on time.�

Three years ago, when official Washington was shut down by a 22-inch snowfall, the Supreme Court conducted its arguments on schedule. Rehnquist sent the court’s marshals in four-wheel-drive vehicles to make sure all of his colleagues arrived.

Off the bench, Rehnquist has a lighthearted manner and enjoys political jokes and cartoons. Strolling around the court building, he takes small bets on sports events.

But in court, he is strict and sometimes curt with lawyers. Long plagued by back pain, he often gets up in the middle of an argument and leaves his seat. Lawyers new to the court are sometimes surprised to see the chief justice disappear behind the curtain. But he returns a minute later, after having stretched his back.

In lower courts, lawyers generally can talk on to make their arguments. In the Supreme Court, they have 30 minutes, and under Rehnquist, not 10 seconds more. “He will cut you off in the middle of the word ‘yes,’ � one advocate said.

Amazing Recall for Decisions

On occasion, Rehnquist stammers in asking questions, but he has an amazing recall for constitutional decisions from decades ago.

Pompous advocates and their long-winded, flowery arguments often draw a sarcastic comment from the chief justice. Kenneth W. Starr, the independent counsel, has argued often before the high court and has found himself on the receiving end of several such jabs.

Once, after a long windup, Starr grandly said: “Let me share with you a bit of the record in this case.�

Rehnquist leaned up to his microphone and dryly interjected: “Why don’t you just tell us about it.�

Rehnquist, a native of Milwaukee, graduated at the top of his Stanford Law School class. He came to Washington in 1951 to clerk for Supreme Court Justice Robert H. Jackson, who is best remembered as the U.S. prosecutor at the Nuremberg war crimes trial.

Afterward, Rehnquist worked for the better part of the next two decades as a lawyer in private practice in Phoenix. In 1969, he came to Washington as a top attorney in the Nixon administration’s Justice Department.

Within three years, President Nixon named him to the Supreme Court and it was President Reagan who elevated him to chief justice.

Since then, he has turned out three books, one on the Supreme Court itself in 1987 and a new book this year on how civil liberties have fared in wartime. (Not well, he writes.)

For much of this year, he has suffered a particular brand of author’s anguish. While “Grand Inquests� has become the capital’s most sought-after volume, the book is out of print. Last week, however, his publisher, William Morrow, announced a reprint of 25,000 paperback copies.

Rehnquist’s book is, of course, a work of history and gives no clear clues about how he will view the Clinton impeachment.

Nonetheless, he has argued that the impeachment power must not be used on a strictly partisan basis and that a Senate trial should be a “judicial proceeding,� not a political referendum.

The Senate acquittals of Justice Chase in 1805 and President Johnson in 1868 may be the most significant and least appreciated constitutional landmarks in U.S. law, Rehnquist wrote.

‘Bullying by the Legislative Branch’

“The framers were particularly concerned about the possibility of overreaching and bullying by the legislative branch--Congress--against the other branches,� Rehnquist said. “To that end, they established terms of office of the president and of the judges in the Constitution itself, where they could not be changed by Congress.�

The impeachment power was an exception to the rule. It allowed Congress to intervene to remove an official guilty of “treason, bribery and other high crimes and misdemeanors.� But the Constitution demands that this power be used sparingly, he wrote.

Even the “threat of impeachment,� if used casually by political partisans, could unwisely alter the balance of power, he warned. “Probably the greatest significance of such a relaxed standard for impeachment would have been its usefulness simply as a threat--a sword of Damocles, designed not to fall but to hang.�

A president with such a sword hanging over his head scarcely could challenge Congress and act as an independent chief executive, he added.

The Senate acquittals of Chase and Johnson were of “extraordinary importance to the American system of government� because they quelled the use of the impeachment power, Rehnquist said.

The first preserved the independence of the federal judiciary against partisan attack. Chase, a strong-willed Federalist, was impeached by anti-Federalists, secretly led by President Thomas Jefferson. Had Chase been convicted and removed from office, the independence of all future justices would have been in doubt, Rehnquist wrote.

Johnson, whose Southern sympathies angered Northern abolitionists, was impeached by the House but acquitted by one vote in the Senate. Had he been convicted, Rehnquist said, “the future independence of the president could have been jeopardized.�